THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


M' 


-*/ 


THE    BEHRING    SEA 
CONTROVERSY 


STEPHEN  BERRIEN  STANTON,  Ph.  D. 

OF    THE    NEW    YORK     BAR 


NEW    YORK 
ALBERT  B.  KING,  PUBLISHER 

1892 


COPYRIGHT    1892 

BY 

STEPHKN    BERRIKN   STANTON 


7? 


PREFACE 


A  part  of  this  book  has  had  a  prior  existence  in  the 
form  of  a  pamphlet,  called  "The  Behring  Sea  Dispute," 
printed  in  the  spring  of  1890  for  private  circulation. 
While  the  substance  of  that  pamphlet  is  retained  in 
the  following  pages,  a  large  amplification  has  been 
rendered  necessary  by  the  growth  of  the  subject. 
At  that  time  the  diplomatic  correspondence  had  not  yet 
been  published  which  frames  the  issues  in  this  con- 
troversy between  Great  Britain  and  the  United  States 
and  presents  the  arguments  on  behalf  of  the  United 
States  as  formulated  by  Mr.  Blaine.  It  was  first  made 
public  in  this  country  in  two  messages  from  the  President 
to  the  House  of  Representatives,  dated  respectively 
July  23,  1890,  and  January  5,  1891.  The  presentation 
of  later  correspondence  to  Parliament,  and  the  news- 
paper file,  have  enabled  me  to  bring  the  subject  down 
to  date  of  February  11,  1892. 
59  Wall  Street,  N.  Y.,   March  i,  1892. 

S.  B.  S. 


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CONTENTS 


PACK 

Chapter  I.     Seizures  and  Negotiations 1 

11.     The  American  Position 22 

III.  Russian  Rights  in  Behring  Sea 30 

IV.  Mare  Liberum  vs.  Mare  Clausum 44 

V.     Prescription 52 

VI.     Exceptions  to  the  Rule  of  Mare  Liberum     ...  58 

I.  When  the  Shores  belong  to  one  Nation     .    .  59 

A.  Gulfs  and  Bays 59 

B.  Enclosed  Seas 61 

C.  Straits 62 

D.  Marginal  Belt 64 

1 .  In  General 64 

2.  The  Hovering  Acts 68 

3.  The  Doctrine  of  Headlands    ....  71 

II.  When  the  Shores  belong  to  more  than   one 
Nation 76 

"    VII.     The  Behring  Sea  not  within  the  Exceptions  to  the 

Rule  of  Mare  Liberum 79 

"  VIII.     Mare  Liberum  in  American  History 81 

''     IX.     The  International  Police  Power  conferred  by  the 
Exigencies  of  Pelagic  Sealing,  and  its  Interlocutory 

Exercise    by    the   United  States 85 

List   of  Authorities 1^1 


THE  BEHRING  SEA  CONTROVERSY. 


CHAPTER  I. 

Seizures  and  Negotiations. 

To  "a  sea  which  lies  far  beyond  the  Hne  of  trade, 
whose  silent  waters  were  never  cloven  by  a  commercial 
prow,  whose  uninhabited  shores  have  no  port  of  entry 
and  could  never  be  approached  on  a  lawful  errand  under 
any  other  flag  than  that  of  the  United  States,"'  our 
eyes,  in  these  pages,  will  be  turned.  Here  is  the  summer 
home  of  the  seal, — the  last  and  greatest  seal  rookery  of 
the  world.  "  Into  this  peaceful  and  secluded  field  of  labor, 
whose  benefits  were  so  equitably  shared  by  the  native 
Aleuts  of  the  Pribylov  Islands,  by  the  United  States,  and 
by  England,  certain  Canadian  vessels  in  1886  asserted 
their  right  to  enter,  and  by  their  ruthless  course  to  de- 
stroy the  fisheries  and  with  them  to  destroy  also  the 
resulting  industries  which  are  so  valuable.  The  Govern- 
ment of  the  United  States  at  once  proceeded  to  check 
this  movement,  which,  unchecked,  was  sure  to  do  great 
and  irreparable  harm.  *  *  * 


1  Let.  Mr.  Blaine  to  Sir  Julian  Pauncefote,  Dec.  17,  1890-1891.  This  and 
the  succeeding  references  to  which  1891  is  added,  refer  to  the  President's  message  of 
Jan.  5,  1891,  51st  Cong.,  2d  Sess.,  House  of  Representatives  Ex.  Doc,  No.  144. 


"  Whence  did  die  ships  of  Canada  derive  the  right 
to  do  in  1886  that  which  they  had  refrained  from  doing  for 
more  tlian  ninety  years  ?  Upon  what  grounds  did  Her 
Majesty's  Government  defend  in  the  year  1886  a  course 
of  conduct  in  the  Behring  Sea  which  she  had  carefully 
avoided  ever  since  the  discovery  of  that  sea  ?  By 
what  reasoning  did  Her  Majesty's  Government  conclude 
that  an  act  may  be  committed  with  impunity  against 
the  riohts  of  the  United  States  which  had  never  been 
attempted  against  the  same  rights  when  held  by  the 
Russian  Empire."  ' 

These  words  of  Mr.  Blaine  present  the  grievance  of 
the  United  States  against  the  depredations  of  British 
vessels  in  Behrinor  Sea. 

A  fever  of  popular  excitement  lends  to  the  weakest 
national  claim  an  apparent,  yet  unreal,  strength.  Only 
by  allaying  this  fever  can  we  rightly  detect  the  real 
strength  underneath.  Like  all  controversies  respecting 
the  national  domain,  the  Behring  Sea  dispute  has  called 
forth  an  abundance  of  bluster.  A  claim  asserted  by 
the  Government  of  the  United  States,  but  uncertainly  at 
first,  has  been  borne  aloft  on  the  shoulders  of  its  people 
into  a  position  of  dangerous  prominence.  Only  by  lay- 
ing aside  all  prejudices,  particularly  the  patriotic,  and 
examining  this  controversy  in  the  cold,  clear  light  which 
international  law  and  history  shed  upon  it,  can  we  hope 
to  grain  a  correct  view  of  its  merits. 

U.  S.  Revised  Statutes. — "Section  1954.  The  laws 
of  the  United  States  relating  to  customs,  commerce  and 


I  No.  9,  1890.  Let.  Elaine- Pauncefole,  Jan.  22,  1890.  This  and  the  succeed- 
ing references  given  by  number  to  which  1890  is  added,  refer  to  the  President's 
mes.sage  of  July  23,  1890,  51st  Cong.,  1st  Sess.,  House  of  Representatives  Ex.  Doc. 
No.  450. 


navigation,  are  extended  to  and  over  all  the  main-land, 
islands,  and  waters  of  the  Territory  ceded  to  the  United 
States  by  the  Emperor  of  Russia  by  treaty  concluded  at 
Washington  on  the  thirtieth  day  of  March  a.  d.  one  thou- 
sand eight  hundred  and  sixty-seven,  so  far  as  the  same 
may  be  applicable  thereto." 

*'  Sec.  1956.  No  person  shall  kill  any  otter,  mink,  mar- 
ten, sable,  or  fur-seal,  or  other  fur-bearing  animal  within 
the  limits  of  Alaska  Territory,  or  in  the  waters  thereof. 

*  it'  -i- 

"Sec.  1057.  '='  '''  *  The  collector  and  deputy  col- 
lectors appointed  for  Alaska  Territory,  and  any  person 
authorized  in  writing  by  either  of  them,  or  by  the  Secre- 
tary of  the  Treasury,  shall  have  power  to  arrest  persons 
and  seize  vessels  and  merchandise  liable  to  fines,  penalties 
or  forfeitures  under  this  and  the  other  laws  extended 
over  the  Territory     '='     *." 

Such  were  the  laws  which  first  apprised  the  world  that 
the  United  States  had  stretched  over  the  Behring  Sea  the 
iron  hand  of  dominion.  They  were  enacted  July  ist,  1870, 
immediately  after  the  cession  of  Alaska. 

The  vague  term  in  these  laws,  "Alaska  Territory,  or 
in  the  waters  thereof,"  remained  for  a  time  unfocused. 
It  did  not  at  first  give  rise  to  a  claim  of  more  than  ordi- 
nary maritime  jurisdiction,  as  is  evident  from  the  following 
incident.  In  1872  Mr.  Phelps,'  collector  of  the  Port  of 
San  Francisco,  reported  to  the  Secretary  of  the  Treasury 
that  expeditions  were  being  organized  in  Australia  and 
the   Hawaiian  Islands  to  capture  seals  on  their  annual 


I  Enclosure  Xo.  156.  Let.  to  Mr.  Boutwell,  Sec.  of  Treas.,  March  25, 
1872.  This  and  the  succeeding  references  given  by  number  refer  to  tlie  President's 
Message  of  Feb.  12  ,  1SS9,  50  Cong.,  2d  Sess.,  Sen.  Ex.  Doc.  No.  106. 


migration  to  the  Seal  Islands  of  St.  Paul  and  St.  George. 
He  recommended  that  a  revenue-cutter  be  sent  to  pre- 
vent this.  But  Sec.  Boutwell's  reply  was:  "I  do  not 
see  that  the  United  States  would  have  the  jurisdiction  or 
power  to  drive  offparties  going  up  there  for  that  purpose, 
unless  they  made  such  attempts  within  a  marine  league 
of  the  shore."  ' 

1 88 1,  however,  seems  to  mark  the  change  of  opinion 
on  this  point.  The  occurrence  in  that  year  of  similar  expe- 
ditions prompted  Collector  D.  A.  D'Ancona  to  request 
from  the  Treasury  Department  more  accurate  informa- 
tion as  to  the  meaning  of  the  above  laws.  The  interpre- 
tation now  put  upon  them  by  the  Department  was  as 
follows  : 

"  You  inquire  in  regard  to  the  interpretation  of  the 
terms  '  waters  thereof  and  '  waters  adjacent  thereto  '  as 
used  in  the  law,  and  how  far  the  jurisdiction  of  the 
United  States  is  to  be  understood  as  extending. 

"  Presuming  your  inquiry  to  relate  more  especially  to 
the  waters  of  Western  Alaska,  you  are  informed  that 
the  treaty  with  Russia  of  March  "30,  1870,  by  which  the 
Territory  of  Alaska  was  ceded  to  the  United  States, 
defines  the  boundary  of  the  Territory  so  ceded.    '''    '^    * 

<<  f^  :i:  *  p^w  |-}^g  waters  within  that  boundary,  to 
the  western  end  of  the  Aleutian  Archipelago  and  chain 
of  islands,  are  considered  as  comprised  .within  the 
waters  of  Alaska  Territory.  All  the  penalties  pre- 
scribed by  law  against  the  killing  of  fur-bearing  animals 
would  therefore  attach  against  any  violation  of  law 
within  the  limits  before  described."  ^ 


1  No.  56.     Letter  to  Mr.  Phelps,  April   19,  1872. 

2  No.  212.     Treas.  Regs.  Let.  of  Acting-Sec.  French  to  Mr.  D'Ancona,  March 
12,  1881. 


In  1886  this  ruling  was  affirmed  by  Secretary  Man- 
ning in  a  letter  '  to  Collector  Hagan  : 

"  Treasury  Department, 

"March  6,   1886. 

"  Sir. — I  transmit  herewith  for  your  information  a 
copy  of  a  letter  addressed  by  the  Department  on  the 
1 2th  March,  1881,  to  D.  A.  D'Ancona,  concerning 
the  Jurisdiction  of  the  United  States  in  the  waters  of 
the  Territory  of  Alaska  and  the  prevention  of  the  killing 
of  fur  seals  and  other  fur-bearing  animals  within  such 
areas  as  prescribed  by  chapter  3,  title  23,  of  the  Revised 
Statutes.  The  attention  of  your  predecessor  in  office 
was  called  to  the  subject  on  the  4th  April,  18S1.  This 
communication  is  addressed  to  you,  inasmuch  as  it  is 
understood  that  certain  parties  at  your  port  contemplate 
the  fitting  out  of  expeditions  to  kill  fur  seals  in  these 
waters.  You  are  requested  to  give  due  publicity  to 
such  letters,  in  order  that  such  parties  may  be  informed 
of  the  construction  placed  by  this  Department  upon  the 
provision  of  law  referred  to. 

"  Respectfully  yours, 

"  D.  Manning,  ' 

"  Secretary." 

But  as  yet  no  captures  had  been  made.^  British 
Columbian  sealers  in  Alaskan  waters  remained  un- 
molested so  late  as  1885  ;  and  this,  although  spoken  by 
American    revenue-cutters.     In  the    spring    of    1886    a 


1  No.  156. 

2  No.  12.     Let.   Mr.   Bayard  to   Sir   L.   S.   S.  West,  April  12,  1887  ;  No.  117. 
Let.  Lord  Lansdowne  to  Mr.  Stanhope,  Nov.  2g,  1886. 


large  fleet  prepared  for  the  coming  seal  fishing  season 
in  Behring  Sea.' 

In  August,  however,  of  that  year,  the  United  States 
cruiser  Coriviii,  acting  under  instructions  from  the 
Treasury  Department,  seized,  at  a  distance  of  115,  45 
and  70  miles  respectively  from  the  island  of  St.  George, 
the  British  Columbia  seal-schooners.  Onward,  Carolena 
and  TJiorntoii.  They  were  taken  into  Sitka,  confiscated 
and  condemned  to  be  sold. 

The  libel  of  information  of  the  United  States  Dis- 
trict Attorney  for  Alaska  against  these  vessels  declared 
them  "  forfeit  to  the  use  of  the  United  States  "  on  the 
ground  of  being  "found  engaged  in  killing  fur  seals 
within  the  limits  of  Alaska  Territory  and  in  the  waters 
thereof  in  violation  of  section  1956  of  the  Revised 
Statutes  of  the  United  States."  ^ 

The  brief  for  the  defendants,  on  the  other  hand, 
contained  the  follow^inor  argument  : 

"The  first  question  then  to  be  decided  is  what  is  meant 
by  the  waters  thereof.  If  the  defendants  are  bound  by 
the  treaty  between  the  United  States  and  Russia  ceding 
Alaska  to  the  United  States,  then  it  appears  that  Russia 
in  1822  claimed  absolute  territorial  sovereignty  over  the 
Behring  Sea,  and  purported  to  convey  practically  one-half 
of  that  sea  to  the  United  States.  But  are  the  defendants, 
as  men  belonging  to  a  country  on  friendly  terms  with  the 
United  States,  bound  by  this  assertion  of  Russia  ?  And 
can  the  United  States  claim  that  the  treaty  conveys  to 
them  any  greater  right  than  Russia  herself  possessed  in 
these  waters  ?  In  other  words,  the  mere  assertion  of  a  right 


1  No.  156.     Let.  Mr.  Lubbe  to  Mr.  Baker,  March  30,  1886. 

2  No.  14.     U.  S.  vs.  The  Carolena,  &c. 


contrary  to  the  comity  of  nations  can  confer  on  the  gran- 
tees no  rights  in  excess  of  those  recognized  by  the  laws  of 
nations. 

"  It  also  appears  that  the  United  States  in  claiming 
sovereignty  over  the  Behring  Sea  is  claiming  something 
beyond  the  well-recognized  law  of  nations,  and  bases  her 
claim  upon  the  pretensions  of  Russia,  which  were  success- 
fully repudiated  by  both  Great  Britain  and  the  United 
States.  A  treaty  is  valid  and  binding  between  the  parties 
to  it,  but  it  cannot  affect  others  who  are  not  parties  to  it. 
It  is  an  agreement  between  nations,  and  would  be  con- 
strued in  law  like  an  aorreement  between  individuals. 
Great  Britain  was  no  party  to  it  and  therefore  is  not 
bound  by  its  terms."  ' 

Judge  Dawson,  after  quoting  the  first  article  of  the 
Alaska  cession  treaty,  charged  the  jury  : 

"All  the  waters  within  the  boundary  set  forth  in  this 
treaty  to  the  western  end  of  the  Aleutian  archipelago  and 
chain  of  islands  are  to  be  considered  as  comprised  within 
the  waters  of  Alaska,  and  all  the  penalties  prescribed  by 
law  against  the  killing  of  fur-bearing  animals  must,  there- 
fore, attach  against  any  violation  of  law  within  the  limits 
heretofore  described. 

-'If,  therefore,  the  jury  believe  from  the  evidence  that 
the  defendants  by  themselves  or  in  conjunction  with  others 
did,  on  or  about  the  time  charged  in  the  information,  kill 
any  otter,  mink,  marten,  sable,  or  fur-seal,  or  other  fur- 
bearing  animal  'or  animals,  on  the  shores  of  Alaska  or  in 
the  Behring  Sea,  east  of  the  193d  degree  of  west  longi- 
tude, the  jury  should  find  the  defendants  guilty."  ^ 


I  No.  156. 
No.   14. 


The  British  Minister  at  Washington,  Sir  L.  S.  Sack- 
ville  West,  immediately  made  formal  protest  in  the  name 
of  Her  Majesty's  Government  against  these  seizures.  ^ 
Whereupon  the  following  despatch  was  sent  by  the  At- 
torney-General to  Judge  Dawson  and  the  U.  S,  District 
Attorney  at  Sitka  : 

"  I  am  directed  by  the  President  to  instruct  you  to  dis- 
continue any  further  proceedings  in  the  matter  of  the 
seizure  of  the  British  vessels  Ca7'olina,  Onward  and 
Thornton,  and  discharge  all  vessels  now  held  under  such 
seizure  and  release  all  persons  that  may  be  under  arrest 
in  connection  therewith." 

That  the  execution  of  this  order  was  delayed  until  its 
repetition  in  the  following  autumn,^  must  be  attributed, 
not  to  any  bad  faith  on  the  part  of  this  government,  but 
solely  to  the  fact  that  its  authenticity  was  suspected  by 
those  to  whom  it  was  directed. ^ 

Secretary  Bayard,  in  communicating  to  Sir  L.  S.  S. 
West  the  above  order,  hastened  to  assure  him  that  this 
action  was  taken  "  without  conclusion  at  this  time  of  any 
questions  which  may  be  found  to  be  involved  in  these 
cases  of  seizure."  •*  He  steadily  refused  to  give  any  assur- 
ance of  the  discontinuance  of  such  seizures.  In  answer 
to  an  inquiry  of  Sir  L.  S.  S.  West,  as  to  whether  vessels 
fitting  out  for  the  approaching  fishing  season  in  Behring 
Sea  might  rely  on  being  unmolested  by  the  cruisers  of 
the  United  States  when  not  near  land,  ^  he  wrote  : 


1  No.  2.     Let.  to  Mr.   P.ayard,  Oct.  21,  1 886. 

2  No.  24.     Let.  Mr.  Garland  to  Mr.  Bayard,  Oct.   12,   1887. 

3  Telegram  of  Oct.   12,  1887  ;  id. 

4  No.  9.     Let.  Mr.  Bayard  to  Sir  L.  S.  S.   West,  Feb.  3,  18 

5  No.  II.     April  4,  1887. 


"  The  question  of  instructions  to  Government  ves- 
sels in  regard  to  preventing  the  indiscriminate  killing  of 
fur-seals  is  now  being  considered,  and  I  will  inform  you 
at  the  earliest  day  possible  what  has  been  decided,,  so 
that  British  and  other  vessels,  visitino-  the  waters  in 
question,  can  govern  themselves  accordingly."' 

And  when  later  informed  that  "  Her  Majesty's  Gov- 
vernment  had  assumed  that,  pending  the  conclusion  of 
discussions  between  the  two  governments  on  general 
questions  involved,  no  further  seizures  would  be  made 
by  order  of  the  United  States  Government,"  "^  he 
promptly  denied  ever  saying  anything  to  justify  such  an 
assumption,  but  declared  that  "  having  no  reason  to 
anticipate  any  other  seizures,  nothing  was  said  in  relation 
to  the  possibility  of  such  an  occurrence."  ^ 

Here  the  matter  mieht  have  ended,  but  fresh  seiz- 
ures  now  re-opened  the  healing  trouble.  All  through 
July  and  August  of  1887,  the  events  of  the  preceding 
year  were  repeated.  During  those  two  months,  the 
U.  S.  revenue-cutter  Richard  Ricsh  captured  the  British 
Columbian  fishing  schooners  W.  P.  Sayward,  59  miles  ; 
Dolphin,  40  miles  ;  Grace,  96  miles ;  and  Anna  Beck,  66 
miles  from  Oonalaska  Island  ;  and  the  Alfred  Adams, 
60  miles  from  the  nearest  land. 

Formal  protest  was  again  entered  by  the  British 
Minister  at  Washington.'^  An  opportunity  was  given 
the  owners  of  these  vessels  to  release  them  on  appeal 
bonds. ^     But  owing  to  a  failure  of  the  proctors  to  take 


1  No.  12.     April  12,  1887. 

2  No.  15.     Sir  L.  S.  S.  West  to  Mr.  Bayard,  August  ii,  1S87. 

3  Let.  tP  Sir  L.  S.  S.  West,  Aug.  13,  1887. 

4  No.  23.  Lets.  Sir  L.  S.  S.  West  to  Mr.  Bayard,  Oct.  12  and  19,  1887. 

5  Let.  Mr.  Garland  to  Mr.  Bayard,  March  9,  1888. 


10 

an  appeal  within  the  prescribed  time,  this  privilege  was 
lost  to  four  of  the  vessels  '  and  the  decrees  of  condem- 
nation became  final. ^  These  four  vessels  were  the 
Anna  Beck,  Dolphin,  G^-ace  and  Ada.  At  the  request 
of  the  British  Government,^  their  sale  was  postponed, 
and  bonds  ordered  to  be  received  in  lieu  of  the  vessels 
until  the  legality  of  their  seizure  could  be  investigated/ 
No  advantage,  however,  was  taken  of  this  offer  to  bond, 
and  their  value,  while  lying  at  Port  Townsend  in  the 
custody  of  the  marshal,  depreciated  so  rapidly  that  a 
total  loss  was  feared. ^  Accordingly,  and,  in  the  case  of 
the  Gi-ace  and  DolpJiin,  at  the  express  wish  of  the 
owner, '^  these  schooners  were,  on  the  14th  of  Novem- 
ber. 1888,  ordered  to  be  sold.^ 

The  Act  of  Congress,  approved  March  2,  1889,  can- 
not be  regarded  as  adding  anything  to  the  history  of 
these  events.  It  simply  declared^  that  Sect.  1956  of 
the  Revised  Statutes,  already  given,  includes  and  applies 
to  "  all  the  dominions  of  the  United  States  in  the  waters 
of  the  Behring  Sea."  But  as  it  does  not  further  define 
what  "these  dominions"  are,  it  begs  the  question. 

It  also  lays  upon  the  President  the  duty  of  making 
an  annual  proclamation  accordingly.  In  pursuance 
whereof,  President  Harrison,  on  March  22d,  warned  "all 
persons  against  entering  the  waters   of  the  Behring  Sea 


1  No.  46.   Let.  of  Sir  L.  S.  S.  West  to  Mr.  Bayard,  Aug.  6,  1888. 

2  No.  45.  Lei.  Mr.  Garland  to  Mr.  Bayard,  May  31,  1888  ;  No.  42.    Let.  Sir  L. 
S.  S.  West  to  Mr.  Bayard,  May  28,  18S8. 

3  No.  46.  Let.  Sir  L.  S.  S.  West  to  Mr.  Bayard,  Aug.  6,  1S88. 

4  No.  49.  Let.  Mr.  Jenks  to  Mr.  Bayard,  Aug.  10,  1888. 

5  No.  59.  Let.  Mr.  Garland  to  IVfc-.  Bayard,  Oct.  20,  18S8. 

6  No.  52.  Let.  Mr.  Atkins  to  Mr.  Garland,  Aug.  25,  1888. 

7  No.  61.  Let.  Mr.  Garland  to  Mr.  Bayard,  Nov.  14,  188S. 

8  3d  section. 


11 

within  the  dominion  of  the  United  States,"  &c.  But 
this  expression  is  equally  unenlightening.    • 

Already,  pending  these  difficulties,  negotiations  for 
their  international  settlement  had  been  begun.  On 
August  19,  1887,  Secretary  Bayard  sent  circular  letters 
to  the  U.  S.  legations  in  England,  Germany,  Prance, 
Japan,  Russia  and  Norway  and  Sweden.  The  situation 
was  thus  described  ; 

"Recent  occurrences  have  drawn  the  attention  of  this 
Department  to  the  necessity  of  taking  steps  for  the  better 
protection  of  the  fur-seal  fisheries  in  Behring  Sea. 

"Without  raising  any  question  as  to  the  exceptional 
measures  which  the  peculiar  character  of  the  property  in 
question  might  justify  this  Government  in  taking,  and 
without  reference  to  any  exceptional  marine  jurisdiction 
that  might  properly  be  claimed  for  that  end,  it  is  deemed 
advisable — and  I  am  instructed  by  the  President  so  to 
inform  you — to  attain  the  desired  ends  by  international 
co-operation." 

Thereupon  the  respective  ministers  to  those  countries 
were  "instructed  to  draw  the  attention  of  the  Govern- 
ment to  which"  they  were  "accredited,  to  the  subject, 
and  to  invite  it  to  enter  into  such  an  arrangement  with 
the  Government  of  the  United  States  as  will  prevent  the 
citizens  of  either  country  from  killing  seal  in  Behring 
Sea  at  such  times  and  places,  and  by  such  methods  as  at 
present  are  pursued,  and  which  threaten  the  speedy  ex- 
termination of  those  animals  and  consequent  serious  loss 
to  mankind."  ' 

It  will  be  noticed  that  the  submission  of  this  matter  to 
the  international  tribunal  is  so  worded  as  to  preclude  any 


I  No.  69.  Let.  Mr.  Bayard  to  Mr.  Vignaud. 


12 

idea  of  retraction  or  confession  of  wrong-  on  the  part  of 
the  United  States.  This  step  must,  therefore,  be  re- 
garded as  taken  solely  from  motives  of  comity. 

Favorable  replies  to  these  invitations  w^ere  received 
from  Great  Britain,^  Russia,^  France^  and  Japan. '^  Nor- 
way and  Sweden  approved  the  plan  ;  but,  while  desiring 
the  future  privilege  of  joining  in  such  an  arrangement, 
they  thought  that  their  lack  of  interest  in  the  seal  fisher- 
ies made  their  present  participation  unnecessary.^  No 
reply  from  Germany  has  as  yet  been  made  public. 

To  Mr.  Bayard's  proposal  that  a  close  time  for  fur 
seals  be  established  between  April  15  and  November  i, 
and  between  160°  of  longitude  west,  and  170°  of  longi- 
tude east  in  the  Behring  Sea,^  Lord  Salisbury  assent- 
ed.7  Russia  eagerly  favored  the  international  conference, 
and  through  her  minister  in  London,  Mr.  de  Staal, 
proposed  to  include  in  the  treaty  both  her  portion  of  the 
Behring  Sea  around  the  Commander  Islands  and  the  sea 
of  Okhotsk.^  The  American  Department^  readily  agreed 
to  this  proposition  and  Lord  Salisbury  suggested  the 
extension  of  the  regulated  area  to  those  parts  of  the  Sea 
of  Okhotsk  and  the  Pacific  Ocean  north  of  north  latitude 

47°.'° 

Just  at  this  juncture,   however,  these   negotiations   so 


1  No.  74.     Let.  Mr.  Phelps  to  Mr.  Bayard,  Nov,  12,  1S87. 

2  No.  103.  Let.  M.  de  Giers  to  Mr.  Lothrop,  Nov.  25,  I887. 

3  No.  70.  Let.  Mr.  McLane  to  Mr.  Bayard,  Oct.  22,  1887. 

4  No.  93.  Let.  Mr.  Hubbard  to  Mr.  Bayard,  Sept.  29,  1887. 

5  No.   106.  Let.  Mr.  Magee  to  Mr.  Bayard,  March  20,   iSS8. 

6  No.  76.  Let.  to  Mr.  Phelps,  Feb.  7,  1888. 

7  No.  78.  Let.  Mr.  Phelps  to  Mr.  Bayard,  Feb.  25,  1888. 

8  No.  81.  Let.  Mr.  White  to  Mr.  Bayard,  April  7,  1888. 

9  No.  83.  Let.  Mr.  Bayard   to  Mr.  White,  April   18,  188S. 
loNo.  84.  Let.  Mr.  White  to  Mr.  Bayard,  April  20,  188S. 


13 

amicably  pending-  at  London  were  stopped.  In  June, 
1888,  the  Canadian  Government  informed  Lord  Salisbury 
that  a  memorandum  on  this  matter  was  being  prepared 
for  forwarding  to  London,  and  begged  that  Her  Majesty's 
Government  would  delay  all  further  action  until  its  ar- 
rival.' 

In  consequence,  all  proceedings  toward  a  solution 
through  the  channel  of  diplomacy  came  to  a  temporary 
standstill. 

These  friendly  attempts  of  the  two  governments  to 
adjust  the  difficulties  in  question  proved  to  be  but  the 
lull  before  a  storm.  American  seizures  and  British  pro- 
tests had  ceased  during  1888  only  to  be  renewed  during 
the  summer  of  1889.  In  obedience  to  a  repetition  of  the 
orders  of  former  years,  the  United  States  revenue  cutter 
Richard  Ritsh  visited  and  searched  in  Behring  Sea,  on  a 
charge  of  seal  poaching,  the  British  Columbian  schooners 
Black  Diamond  and  Triumph.  The  Black  Dia^nond  when 
hailed  was  about  35  miles  from  land  and  had  on  board 
131  seal-skins  which  were  transferred  to  the  revenue 
steamer.  A  special  officer  of  the  United  States  was  placed 
on  board  of  the  fishing  vessel  with  orders  to  proceed  to 
Sitka,  there  to  deliver  her  up  to  the  United  States 
district  attorney.  The  fact  that  the  master  took  the  law 
into  his  own  hands,  and,  in  violation  of  the  instructions 
of  the  United  States  officers,  brought  his  vessel  to  Vic- 
toria instead  of  Sitka,  saved  the  United  States  the 
embarrassment  of  British  interference  in  subsequent 
judicial  condemnation  proceedings. 

The  Triumph  also  was  far  out  to  sea,  latitude  56° 
05'  north,   longitude    171°  23'  west,   when   seized.     No 

I  No.  87.  Let.  Mr.  White  to  Mr.  Bayard,  June  20,  1S88. 


14 

seal-skins  being  found  on  board  of  her,  she  was  warned 
and  hberated.  ' 

As  before,  diese  acts  of  alleged  violence  on  die  part 
of  the  United  States  were  promptly  protested  against 
by  Lord  Salisbury.^  The  State  Department  again  under- 
taking to  justify  these  seizures,  the  suspended  corres- 
pondence between  the  diplomatic  representatives  of  the 
two  countries  was  re-opened.  No  understanding  between 
them  was  reached  which  would  permit  of  a  mutual 
regulation  of  the  seal  fishing  for  the  season  of  1890. 
It  being  rumored  that  orders  similar  to  those  of 
previous  seasons  had  been  issued  to  our  revenue 
cruisers  about  to  be  dispatched  to  Behring  Sea,  Sir 
Julian  Pauncefote  formally  protested  against  such  threat- 
ened interference,  and  declared  that  his  Government 
must  hold  the  United  States  responsible  for  the  con- 
sequences which  might  ensue  therefrom. ^  But  fortu- 
nately there  resulted  no  clash  of  interests  in  the  Behring 
Sea,  during  that  season,  of  sufficient  importance  to  call 
forth  further  remonstrance  from  Great  Britain.  Before 
the  summer  of  1891  arrived,  diplomatic  negotiations 
had  proceeded  so  far  that  a  modus  vivendi  was  agreed 
upon  by  the  two  countries.  This  agreement,  made  June 
15,  1 89 1,  has  an  additional  interest  in  being  a  possible 
forecast  of  a  permanent  settlement  to  be  hereafter 
made.     It  provides  : 

I.  That  Her  Majesty's  Government  will  prohibit, 
until  May  next,  seal-killing  in  that  portion  of  the  Behr- 


1  See  declaration  and  affidavit  of  the  masters,  and  instructions  of  Capt.  Shepard 
of  the  Rush  to  tlie  special  officer  placed  on  board  the  Black  Diatuofx/,  inclosures 
4,  6  and  7,  of  No.  7,  1890. 

2  No.  7,  1890.     Let.,  The  Marquis  of  Salisbury  to  Mr.  Edwardcs,  Oct.  2,  1889. 

3  No.  25,  1890.     Inclosure  of  let.  Pauncefote- i51aine,  June  14,   1S90. 


15 
I 

ing  Sea  which  belongs  to  the  United  States,  "  and  will 
promptly  use  its  best  efforts  to  insure  the  observance  of 
this  prohibition  by  British  subjects  and  vessels." 

2.  That  the  U.  S.  Government  will  prohibit  seal- 
killing  for  the  same  period  and  in  the  same  portion  of 
the  Behring  Sea,  "  and  on  the  shores  and  islands 
thereof,  the  property  of  the  United  States  (in  excess  of 
7,500  to  be  taken  on  the  islands  for  the  subsistence  and 
care  of  the  natives)  and  will  promptly  use  its  best  efforts 
to  insure  the  observance  of  this  prohibition  by  United 
States  citizens  and  vessels.  " 

3.  "  Every  vessel  or  person  offending  against  this 
prohibition  in  the  said  waters  of  the  Behring  Sea,  out- 
side of  the  ordinary  territorial  limits  of  the  United 
States,  may  be  seized  and  detained  by  the  Naval  or 
other  duly  commissioned  officers  of  either  of  the 
high  contracting  parties,  but  they  shall  be  handed 
over,  as  soon  as  practicable,  to  the  authorities  of  the 
nation  to  which  they  respectively  belong,  who  shall 
alone  have  jurisdiction  to  try  the  offence  and  impose  the 
penalties  for  the  same."         *         '='         '•' 

4.  "  In  order  to  facilitate  such  proper  inquiries  as 
Her  Majesty's  Government  may  desire  to  make,  with  a 
view  to  the  presentation  of  the  case  of  that  Government 
before  arbitrators,  and  in  expectation  that  an  agreement 
for  arbitration  may  be  arrived  at,  it  is  agreed  that  suita- 
ble persons  designated  by  Great  Britain  will  be  per- 
mitted at  any  time,  upon  application,  to  visit  or  to 
remain  upon  the  seal  islands  during  the  present  sealing 
season  for  that  purpose."  ' 

This  agreement  was  signed  with   the  express  assur- 

I  New  York  Tribune,  June  16,  1891. 


16 

ance  on  the  part  of  the  United  States  Government, 
solicited  by  Lord  Salisbury,  that  it  would  consent  to  the 
appointment  of  a  joint  commission  "  to  ascertain  what 
permanent  measures  are  necessary  for  the  preservation 
of  the  seal  species  in  the  waters  referred  to  ;"  such 
agreement  "to  be  signed  simultaneously  with  the  con- 
vention of  arbitration,  and  to  be  without  prejudice  to 
the  questions  to  be  submitted  to  the  arbitrators."  ' 

The  powers,  according  to  the  7nodus  vivendi  to  be 
exercised  by  Great  Britain,  had  been  previously  pro- 
vided for  by  an  Act  of  Parliament,  passed  June  8, 
enabling  Her  Majesty,  by  Order  in  Council,  to  make 
specific  provisions  for  prohibiting  the  catching  of  seals 
in  Behring  Sea  by  her  subjects.^ 

Pursuant  to  article  4,  Great  Britain,  on  June  22, 
appointed  Sir  George  Smyth  Baden-Powell  and 
Dr.  Dawson,  3  who,  during  the  summer  of  1891, 
visited  the  seal  islands  of  the  Behring  Sea  and  col- 
lected data  for  a  report  to  their  Government.  The 
United  States  also  appointed  two  commissioners.  Pro- 
fessor T.  C.  Mendenhall  and  C.  Hart  Merriam,  for 
a  similar  purpose.  In  January  1892,  the  Secretary  of 
State  arranged  with  the  British  Minister  for  a  conference 
of  the  commissioners  at  Washington. ^  Early  in  Febru- 
ary, the  commission  convened.  Edward  J.  Phelps,  ex- 
Minister  to  the  Court  of  St.  James,  was  appointed  to  act 
as  chief  counsel  of  the  United  States  before  this  Board. s 
As  yet  the  result  of  the  conference  is   unknown. 

1  Let.  Wharton-Sir  J.  Pauncefote,  June  il,  1891,  New  York  Tribune,  June  16, 
1891. 

2  New  York  Tribune,  June  9,  1891. 

3  Id.,  June  23,   1891. 

4  Id.,  Jan.  27,  1892. 

5  Id.,  P'eb.  4,  1892. 


17 

Meanwhile,  the  diplomatic  battle,  which  for  two 
years  had  been  waged  between  Mr.  Blaine  and  Lord 
Salisbury  on  the  merits  of  the  questions  involved  in  the 
controversy,  had  culminated  in  the  proposal  of,  and 
partial  agreement  to,  definite  terms  of  arbitration. 
Indeed,  during  the  argument  of  the  Sayzva^^d  case 
before  the  Supreme  Court  at  Washington,  on  the  tenth 
of  November,  1 89 1 ,  Attorney-General  Miller  announced 
that  these  terms  had  been  finally  decided  upon.'  Presi- 
dent Harrison,  in  his  opening  message  to  Congress, 
December  9,  1891,  said  :  "  I  am  glad  now  to  be  able  to 
announce  that  terms  satisfactory  to  this  Government 
have  been  agreed  upon,  and  that  an  agreement  as  to 
the  arbitrators  is  all  that  is  necessary  to  the  completion 
of  the  convention."  ^  In  the  Queen's  speech,  opening 
Parliament,  on  Febuary  9.  1892,  the  following  statement 
was  made:  "An  agreement  has  been  concluded  with 
the  United  States,  defining  the  mode  by  which  the  dis- 
putes regarding  the  seal  fisheries  in  Behring  Sea  will  be 
referred  to  arbitration."  ^  The  terms  of  the  proposed 
agreement  of  arbitration,  as  far  as  the  latest  published 
correspondence  reveals  them,  are: 

"First.  What  exclusive  jurisdiction  in  the  sea  now 
know  as  the  Behring  Sea,  and  what  exclusive  rights  in 
the  seal  fisheries  therein,  did  Russia  assert  and  exercise 
prior  and  tip  to  the  time  of  the  cession  of  Alaska  to  the 
United  States  ? 

"  Second.   How  far  were  these  claims  of  jurisdiction 


1  Stenogiaphic  report  of  oral  arguments  of  counsel   before  the  Supreme  Court  of 
the  United  States,  in  the  case  of  the  "  W.  P.  Sayward,"  p.  72. 

2  New  York  Sun,  Dec.  10,  1891. 

3  New  York  Tribune,  Feb.  lo,  1S92. 


18 

as  to  the   seal    fisheries   recognized    and    conceded    by 
Great  Britain  ? 

"Third,  Was  the  body  of  water  now  know  as  the 
Behring  Sea  included  in  the  phrase  "  Pacific  Ocean," 
as  used  in  the  treaty  of  1825  between  Great  Britaiii  and 
Russia,  and  what  rights,  if  any,  in  the  Behring  Sea,  were 
held  and  exclusively  exercised  by  Russia  after  said 
treaty  ? 

"  Fourth.  Did  not  all  the  rights  of  Russia  as  to  juris- 
diction and  as  to  the  seal  fisheries  in  Behringf  Sea  east  of 
the  water  boundary,  in  the  treaty  between  the  United 
States  and  Russia  of  l^larch  30,  1867,  pass  unimpaired 
to  the  United  States  under  that  treaty? 

'*  Fifth.  Has  the  United  States  any  right,  and,  if  so, 
what  right  of  protection  or  property  in  the  fur  seals 
frequenting  the  islands  of  the  United  States  in  Behring 
Sea,  when  such  seals  are  found  outside  the  ordinary 
three-mile  limit  ? 

"  Sixth.  If  the  determination  of  the  foregoing  ques- 
tions shall  leave  the  subject  in  such  position  that 
the  concurrence  of  Great  Britain  is  necessary  in  pre- 
scribing regulations  for  the  killing  of  the  fur  seal  in  any 
part  of  the  waters  of  Behring  Sea,  than  it  shall  be  fur- 
ther determined  :  First,  how  far,  if  at  all,  outside  the 
ordinary  territorial  limits  it  is  necessary  that  the  United 
States  should  exercise  an  exclusive  jurisdiction  in  order 
to  protect  the  seal  for  the  time  living  upon  the  islands 
of  the  United  States  and  feeding  therefrom  ?  Second, 
whether  a  closed  season  (during  which  the  killing  of 
seals  in  the  waters  of  Behring  Sea  outside  the  ordinary 
territorial  limits  shall  be  prohibited)  is  necessary  to  save 
the  seal  fishing  industry,  so  valuable  and  important  to 
mankind,  from  deterioration  or  destruction  ?    And,  if  so, 


19 

third,  what  months  or  parts  of  months  should  be  in- 
cluded in  such  season,  and  over  what  waters  it  should 
extend  ?  "  ' 

To  these  Lord  Salisbury  would  add  : 

"  What  damages  are  due  to  the  persons  who  have 
been  injured,  in  case  it  shall  be  determined  by  him  [the 
arbitrator]  that  the  action  of  the  United  States  in  seiz- 
ing British  vessels  has  been  without  warrant  in  inter- 
national law  ?  "  ^ 

"The  President  does  not  object  to  the  additional 
question  respecting  alleged  damages  to  English  ships 
proposed  by  Lord  Salisbury,  if  one  condition  can  be 
added,  namely  :  That  after  the  issues  of  the  arbitration 
are  joined,  if  the  United  States  shall  prevail,  all  the  seals 
taken  by  Canadian  vessels  during  the  period  shall  be 
paid  for  at  the  ordinary  price  for  which  skins  are  sold."  ^ 
The  first,  second  and  fourth  questions  above  mentioned 
have  from  their  first  proposal  been  satisfactory  to  both 
countries.  Questions  third  and  fifth  are  griven  as  modified 
by  Mr.  Blaine  to  meet  the  objections  of  Lord  Salisbury. 
The  sixth  question,  Lord  Salisbury  thinks,  "would  more 
fitly  form  the  substance  of  a  separate  reference.  Her 
Majesty's  Government  have  no  objection  to  refer  the 
general  question  of  a  close  time  to  arbitration,  or  lo 
ascertain  by  that  means  how  far  the  enactment  of  such 
a  provision  is  necessary  for  the  preservation  of  the  seal 
species  ;  but  any  such  reference  ought  not  to    contain 


1  Let.  Blaine-Paunccfote,  April  14,  1891.     Fublislied,  May  7,  I091. 

2  Let.  Salisbury-Pauncefote,  Feb.  21,  1891  ;  see  United  States,  No.  i,  (1891). 
Further  correspondence  respecting  the  Behring  Sea  seal  fisheries.  Presented  to 
both  Houses  of  Parliament  by  command  of  Her  Majesty,  March,  1891,  London. 

3  Let.  Blaine-Pauncefote,  April  14,  1891. 


20 

words  appearing  to  attribute  special  and  abnormal 
rights  in  the  matter  to  the  United  States."  ' 

No  authoratative  information  can  at  present  be  ob- 
tained as  to  the  personnel  of  the  Board  of  Arbitration. 
But  it  will,  it  is  stated,  be  composed  of  seven  members. 
Two  are  to  represent  the  United  States,  and  two  Great 
Britain.  In  reply  to  a  question  asked  in  the  House  of 
Commons,  the  Parliamentary  Secretary  of  the  Foreign 
Office,  on  February  lo,  said  that  Great  Britain  and  the 
United  States  had  agreed  that  France,  Italy  and  Sweden 
should  act  as  arbitrators.  But  these  countries  had  not 
yet  been  asked  to  appoint  their  representatives  on  the 
Board. ^  Of  the  two  British  representatives,  one  will  be 
from  Canada.  The  sittings  of  the  Board  of  Arbitration 
will  be  held  in  Paris. ^ 

Within  the  past  year  a  move  has  been  made  by  the 
British  Government  which  may  result  in  practically  with- 
drawing the  settlement  of  the  question  of  jurisdiction  in 
Alaskan  waters  from  the  executive  branch  of  the  United 
States  Government  and  giving  it  to  the  Supreme  Court. 
During  the  early  part  of  1891,  the  Attorney  General  of 
Canada  presented  to  the  Supreme  Court  of  the  United 
States  a  suggestion  for  a  writ  of  prohibition  to  be  directed 
to  the  judge  of  the  District  Court  of  the  United  States  in 
and  for  the  Territory  of  Alaska,  restraining  him  from  all 
further  proceedings  in  the  case  of  the  "W.  P.  Sayward," 
one  of  the  British  sealing  vessels  captured  during  the 
summer  of  1887  by  the  U.  S.  Rev.  Cutter,  Rush.  The 
owner,   one  Thomas  Henry  Cooper,  a    British  subject. 


1  Let.  Salisbury-Pauncefote,  Feb.  21,  1891,  supra. 

2  New  York  Tribune,  Feb.  11,  1892. 

3  Id.,  Feb.  10,  1892. 


21 

presented  a  similar  petition.  The  writ  was  requested 
on  the  ground  of  lack  of  jurisdiction  in  the  Alaskan 
Court  by  reason  of  the  fact  that  the  seizure  of  the 
Say  ward  in  the  Behring  Sea  took  place  59  miles  from 
land  and  therefore  without  the  jurisdiction  of  the  United 
States.  Sir  John  Thompson,  the  Canadian  Attorney- 
General,  in  concluding  his  suggestion,  "most  respectfully 
informs  this  Honorable  Court  that  the  fact  that  this,  his 
suggestion,  is  presented  with  the  knowledge  and  ap- 
proval of  the  Imperial  Government  of  Great  Britain, 
will  be  brought  to  the  attention  of  the  Court  by  counsel 
duly  thereunto  authorized  by  Her  Britannic  Majesty's 
representative  in  the  United  States." 

Accordingly,  a  rule  to  show  cause  was  granted  to 
the  Alaskan  Court,  and  on  Nov.  10th  and  nth,  1891, 
the  Supreme  Court  heard  arguments  for  and  against 
the  issue  of  the  writ.  The  British  Government  was 
represented  by  counsel,  and  the  Attorney-General  and 
Solicitor-General  appeared  on  behalf  of  the  United 
States.  No  decision  on  the  application  has  as  yet  been 
rendered. 


22 

CHAPTER  II. 
The  American  Position. 

"  You  will  observe,  from  the  facts  given  above,  that 
the  authorities  of  the  United  States  appear  to  lay  claim 
to  the  sole  sovereignty  of  that  part  of  Behring  Sea  lying 
east  of  the  westerly  boundary  of  Alaska,  as  defined  in 
the  first  article  of  the  treaty  concluded  between  the 
United  States  and  Russia  in  1867,  by  which  Alaska  was 
ceded  to  the  United  States,  and  which  includes  a  stretch 
of  sea  extending  in  its  widest  part  some  600  or  700  miles 
easterly  [westerly?]  from  the  mainland  of  Alaska."  ' 

That  England  should  take  this  view  of  the  course  of 
the  United  States  in  protecting  the  seal  fisheries  of 
Alaska  is  not  strangle. 

In  the  absence  of  the  express  provision  of  a  treaty  to 
the  contrary,  the  right  of  a  nation  to  visit  and  search 
ships  of  another  nation  is  not  recognized  beyond  its  ter- 
ritorial limits.  The  exercise  of  the  right  beyond  those 
limits  implies  a  claim  to  sovereignty  over  the  sea  where- 
in the  visit  and  search  is  made.  But  except  in  en- 
closed portions,  no  nation  has  jurisdiction  over  the  sea 
beyond  three  miles  or  cannon-range  from  its  coasts. 
Therefore,  prima  facie,  the  United  States  is  either 
assuming  sovereignty  over  a  portion  of  the  sea 
which  lies  outside  its  borders,  or  else  is  exerting  upon 
the  high  seas  an  unwarrantable  power.  In  either  case, 
the  burden  of  proof  is  on  the  United  States, — in  the  first 
case  to  show  ownership  of  the  Behring  Sea ;  in  the  sec- 
ond, to  show  exceptional  circumstances  justifying  the 
seizures  complained  of. 


I  No.  3.     Let.  Earl  of    Iddcsleigh  to  Sir  L.  S.  S.  West,  Oct.  30,  \\ 


23 

Before  inquiring-  how  the  United  States  supports 
this  burden,  we  do  well  to  glance  at  the  various  instances 
adduced  by  Mr.  Blaine  of  British  assumption  of  power 
in  marine  matters  beyond  the  three-mile  limit.  If,  indeed, 
the  United  States  has  the  example  of  Great  Britain  as  a 
precedent,  its  task  of  convincing  her  of  the  righteousness 
of  its  course  is  reduced  to  an  appropriate  citation  of  her 
history. 

In  the  first  place,  England  is  reminded  by  Mr.  Blaine 
that  in  1816  during  the  captivity  of  Napoleon  Bonaparte 
on  the  Island  of  St.  Helena,  she  passed  a  Statute  not 
only  excluding  ships  of  any  nationality  from  landing  on 
the  island,  but  forbiddinor  them  "to  hover  within  8 
leagues  of  the  coast  of  the  island."  '  Neither  does  Mr. 
Blaine  state  nor  do  we  know  of  the  seizure  or  exclusion 
under  this  Act  of  a  single  non-British  vessel  in  the  face 
of  a  protest  from  the  sovereign  under  whose  flag  she 
sailed  ;  so  that,  for  aught  we  know,  this  Act,  like  the 
"  Hovering  Acts,"  may  have  been  enforced,  if  enforced 
it  was  against  foreign  ships,  in  reliance,  as  Dana  puts 
it,  "on  motives  of  comity"^  in  other  nations.  But 
further  observe  the  international  authorization  on  which 
Great  Britain  proceeded  in  enacting  this  measure.  Rus- 
sia, Prussia  and  Austria,  by  the  treaty  of  Paris  of  August 
2nd,  181 5,  specially  intrusted  the  custody  of  Napoleon 
to  the  British  Government.  Was  it  unwarranted  for 
Great  Britain  to  suppose  that  this  trust  carried  with 
it  the  power  to  take  all  steps  necessary  to  its  faith- 
ful execution  ?  If  it  be  objected  that  the  United 
Stcites  and  many  other  nations  were  not  parties  to  that 


1  Let.  Blaine-Pauncefote,  Dec.   17,  1890,-1891. 

2  Whealon  \  179,  note. 


24 

treaty,  the  reply  is  ready  that  the  peace  of  Europe, 
if  not  of  the  world,  depended  upon  the  safe-keeping  of 
Napoleon  Bonaparte.  An  international  extremity  calls 
for  consideration  and  respect  from  the  civilized  world, 
without  which  no  international  law  is  possible.  For  the 
United  States  to  have  opposed  a  small  commercial  inter- 
est to  the  welfare  of  Europe,  would  have  been  an  act  of 
churlishness  justly  meriting  a  forfeiture  of  the  good 
offices  of  the  countries  of  that  continent.  In  strikino- 
contrast  to  the  magnitude  of  the  object  for  which  the  St. 
Helena  Statute  was  passed  appear  the  financial  consid- 
erations in  furtherance  of  whicli  there  was  enacted  in 
1799,  and  still  stands  on  the  statute  book,  a  law  enabling 
the  revenue  officers  of  the  United  States  to  board  and 
search  vessels  at  a  distance  of  four  leagues  from  its 
coast.  ' 

Continuing,  Mr.  Blaine  points  out  the  excessive  ma- 
rine jurisdiction  assumed  by  the  Federal  Council  of 
Australasia,  in  the  regulation  of  pearl  and  other  fisheries.  ^ 
We  are  informed  that  a  provision  of  the  very  act 
which  assumes  such  jurisdiction,  limits  its  application  to 
British  subjects.  This  would,  of  course,  deprive  the  cita- 
tion of  all  analogical  force.  But,  however  that  may  be, 
here,  as  in  the  preceding  illustration,  an  instance  of 
the  coercion  of  subjects  or  citizens  of  other  nations  is 
lacking. 

The  regulation  of  the  Ceylon  pearl  fishery  by  British 
authorities,  twenty  miles  to  sea,  has  also  been  cast  in  the 
teeth    of  Great   Britain.  ^      But    those    authorities  have 


1  Act  of  March  2,  1799,  ch.   12S,  ^  99;  U.  S.  Rev.  Stats.  ^  2760. 

2  Same  letter. 

3  No.  9,   1S90.   Let.   IJlaine-Pauncefote,  Jan.  22,   1890. 


25 

never  excluded  odier  nations  from  the  profits  of  pearl 
fishing  ;  nor  have  other  nations  ever  acknowledged  any 
monopoly  to  England.  '  If  they  have  never  exercised 
their  right  to  fish  in  these  waters,  it  is  to  be  presumed 
that  they  could  not  at  a  distance  compete  with  native 
divers. 

In  a  subsequent  letter,  Mr.  Blaine  calls  attention  to 
the  act  of  Parliament  of  1889  authorizing  the  Fishing 
Board  to  prohibit  certain  methods  of  fishing  in  the  bay 
of  the  North  Sea  comprised  between  Duncansby  Head 
in  Caithness  and  Rattray  Point  in  Aberdeenshire,  Scot- 
land. The  area  of  water  over  which  this  regulation 
extends  is  2700  square  miles,  with  an  opening  to  the  sea 
85  miles  broad.  ^  If  we  suggest  in  this  connection  the 
"  Headland  Doctrine,"  which  concedes  jurisdiction  in 
such  bays  to  the  bordering  nation,  we  do  so  not  be- 
cause we  believe  it  affords  a  sufficient  defence  to  the 
enforcement  of  this  act  ag-ainst  foreion  vessels,  but  sim- 
ply  because  it  would  lend  to  such  an  enforcement  an 
argument,  at  least,  which  is  wanting  in  support  of  our 
Behring  Sea  seizures.  The  great  point  to  be  noticed 
about  the  act  is  that  there  is  absolutely  nothing  objec- 
tionable to  be  found  in  it,  except  the  term  used  to  denote 
against  whom  it  shall  be  enforced, — "any  person."  This 
might,  of  course,  include  citizens  or  subjects  of  other 
countries  ;  but  is  it  so  intended  and  will  such  an  inter- 
pretation be  put  into  practice  ?  The  extreme  improba- 
bility of  any  but  British  subjects  fishing  in  a  bay  off  the 
north-east  coast  of  Scotland  seems  sufficient  to  raise 
a  doubt  that  Parliament  intended  the  expression  to  have 


1  James  B.  Angell.  Forum,  Nov.  1889. 

2  Let.  Blaine-Pauncefote,  April   14,    1891. 


26 

a  wider  meaning.  Be  that  as  it  may,  we  have  not  heard 
of  any  consequent  interference  with  American  or  other 
non-British  fishermen. 

We  may  say,  therefore,  in  general  of  all  these  British 
laws  involving  alleged  excessive  marine  jurisdiction,  that 
besides  affording  at  best  nothing  but  a  tu  quoqiie  argu- 
ment, they  fail  in  the  only  characteristic  which  could 
constitute  them  useful  analogies  to  the  present  issue, 
— i.  e.  the  infliction  of  their  penalties,  in  the  face  of  a 
protest  of  another  nation,  upon  one  of  its  vessels.  Un- 
til such  an  instance  of  their  enforcement  can  be  shown, 
they  have  no  greater  argumentative  value  in  this  con- 
troversy than  the  "  Hovering  Acts"  (of  which  we  here- 
after speak),  which  are  confessedly  executed  against 
foreign  ships  only  by  the  consent  of  the  nation  whose  flag 
flies  on  the  coerced  ship.  In  the  enforcement  of  all  such 
regulations,  the  acquiescence  of  other  nations  falls  under 
the  head  of  the  maxim,  volenti  injuria  non  Jit. 

Coming  now  to  the  arguments  proper  on  which  the 
United  States  bases  its  Behring  Sea  policy,  we  find  that 
from  the  first  its  solicitude  has  been  for  the  preserv^ation 
of  the  seal  industry.^  If  proof  be  needed  of  the  sincerity 
of  that  solicitude,  it  is  found  in  the  fact  that  in  1887  ten 
American  vessels  were  seized  and  citizens  of  the  United 
States  were  arrested  for  illicit  killinof  of  fur  seals  in  the 
Behring  Sea.  ^  But  not  alone  on  the  exigencies  of 
seal  life  does  Mr.  Blaine  found  the  claims  of  the  United 
States,  but  also  on  territorial  ownership  and  fishing- 
privileges  derived  from  Russia.  So  far  from  opposing 
the    pretensions  of  Russia,   while  she  owned  Alaska,  to 


1  No.   124.     Let.  Sir  L.  S.  S.  West  to  Earl  of  Iddesleigli,  Dec.   lo,  iS86. 

2  No.  76.     Let.  Mr.   Bayard  to  Mr.   Phelps,   Feb.  7,  1888. 


27 

exclusive  jurisdiction  over  the  Behring  Sea,  the  United 
States  and  Great  Britain,  contends  Mr.  Blaine,  by  omit- 
ting specific  mention  of  that  sea  m  the  treaties  of  1824 
and  1825,  distinctly  conceded  to  Russia  the  rights  therein 
to  which  she  aspired.  These  exclusive  rights  were  con- 
tinuously exercised  by  Russia  down  to  her  cession  of 
Alaska  to  the  United  States  in  1867,  when  she  transferred 
them  unimpaired  to  the  United  States.  In  the  United 
States  they  are  now  vested ;  and  after  her  many  years  of 
silence,  England  is  now  estopped  from  denying  their 
validity. 

The  contention  that  the  outcome  of  the  negotiations 
and  treaties  of  1S20-1825  between  Russia  and  Great 
Britain  and  the  United  States  was  the  confirmation  to 
Russia  of  certain  exclusive  privileges  in  the  Behring 
Sea,  is  a  contention  which  has  a  legal  as  well  as  an 
historical  aspect.  In  the  first  place,  it  involves  a  claim, 
at  least  as  against  two  other  nations,  to  sovereignty  over 
a  large  portion  of  the  Behring  Sea.  This  is  but  a  re- 
stricted form  of  the  ancient  doctrine  of  mare  clausum. 
It  is  true  that  such  a  claim  is  expressly  repudiated  by 
Mr.  Blaine  in  his  letter  to  Sir  Julian  Pauncefote  of  Dec. 
17,  1890  :  ' 

"  The  repeated  assertions  that  the  Government  of 
the  United  States  demands  that  the  Behringf  Sea  be 
pronounced  mai'-e  clausum,  are  without  foundation.  The 
Government  has  never  claimed  it  and  never  desired  it. 
It  expressly  disavows  it.  At  the  same  time  the  United 
States  does  not  lack  abundant  authority,  according  to 
the  ablest  exponents  of  International  law,  for  holding  a 
small  section  of  the  Behring  Sea  for  the  protection   of 

I  Message,  Jan.  5,  1891. 


28 

the  fur  seals.  Controlling  a  comparatively  restricted 
area  of  water  for  that  one  specific  purpose  is  by  no 
means  the  equivalent  of  declaring  the  sea,  or  any  part 
thereof,  mare  clausumr 

But  the  acts,  v^^hich  it  is  the  part  of  the  United  States 
Government  to  defend,  are  acts  which  can  be  rightfully 
committed  in  none  but  a  closed  sea.  Sovereignty,  Ortolan 
defines  as  "  un  sorte  de  droit  de  souverainete,  de  tribut,  de 
police  ou  de  jurisdiction."  '  Less  than  as  acts  "  de  police 
ou  de  jurisdiction,"  we  cannot  well  rate  the  seizure  of 
vessels  belonging  to  another  nation.  The  United  States 
cannot  escape  the  imputation  of  laying  claim  to  a  por- 
tion of  the  Behring  Sea  as  mare  daicsum,  simply  by 
naming  the  authority  it  has  assumed  in  those  waters, 
police  power.  That,  as  Ortolan  shows,  is  an  attribute 
of  sovereignty.  And  for  a  nation  to  exercise  it  over  any 
but  a  closed  sea,  "  il  faudrait  done  que  ce  peuple  se 
pretendit  personellement  le  superieur,  le  souverain  des 
autres  '•''  *.  L'empire  des  mers  ne  pent  done  exister 
au  profit  de  qui  que  ce  soit,  pas  plus  que  le  droit  de 
propriete."  ^ 

Secondly,  the  argument  of  derivative  rights  from 
Russia  implies  prescription.  It  says  not  only  that 
Russia  acquired  exclusive  possession  of  Behring  Sea, 
but  that  she  acquired  it  by  prescription.  For  it  is  not 
contended  on  the  part  of  the  United  States  Government 
that  Great  Britain  ever  expressly  conceded  to  Russia  the 
rights  she  claimed  in  the  Behring  Sea,  "  *  Concession  ' 
as  used  here,"  says  Mr.  Blaine,  "  means  simply  ac- 
qidescence  in  the  rightfulness  of  the  title,  and  that  is  the 


1  Ortolan,  I,  p.  1 19. 

2  Ortolan  I,  pp.  119  and  1 20. 


29 

only  form  of  concession  which  Russia  asked  of  Great 
Britain  or  which  Great  Britain  gave  to  Russia."' 

From  this  analysis,  it  will  be  seen  that  the  case  of 
the  United  States  consists  of  three  lines  of  argument — 
the  historical,  the  legal  and  the  expedient. 

The  three  matters  with  which  these  arguments  deal 
are  : 

1.  The  history  of  Russian  rights  in  Behring  Sea. 

2.  The  extent  to  which  the  Doctrine  of  Free  Sea  is 
applied  in  modern  International  Law  ;  and  the  existence 
of  marine  prescription. 

3.  The  international  police  power  conferred  by  the 
exigencies  of  pelagic  sealing. 

1  I.et.  Blaine-Pauncefote,  Dec.  17,  1890,-1891. 


30 


CHAPTER  III. 
Russian  Rights  in  the  Behring  Sea. 

In  1 82 1  Russia  first  proclaimed  to  the  world  her 
sovereignty  over  the  north  Pacific  Ocean.  The  extent 
of  the  dominion  claimed  is  shown  by  the  regulations 
published  in  pursuance  to  the  ukase  of  the  Emperor 
Alexander,  made  on  the  fourth  of  September,  in  that 
year : 

"Sec.  i.  The  pursuits  of  commerce,  whaling  and 
fishing,  and  of  all  other  industries,  on  all  islands,  ports 
and  gulfs,  including  the  whole  of  the  northwest  coast  of 
America,  beginning  from  Behring  Strait  to  the  fifty-first 
degree  of  northern  latitude  ;  also  from  the  Aleutian 
Islands  to  the  eastern  coast  of  Siberia,  as  well  as  along 
the  Kurile  Islands  from  Behring  Strait  to  the  south  cape 
of  the  island  of  Urup,  viz,  to  45°  50'  northern  latitude, 
are  exclusively  granted  to  Russian  subjects. 

"Sec.  2.  It  is  therefore  prohibited  to  all  foreign 
vessels  not  only  to  land  on  the  coasts  and  island  belong- 
ing to  Russia,  as  stated  above,  but  also  to  approach  them 
within  less  than  a  hundred  Italian  miles.  The  trans- 
gressor's vessel  is  subject  to  confiscation,  along  with  the 
whole  caro^o." 

It  will  be  noticed  that  this  decree  does  not  claim  the 
whole  of  Behring  Sea  to  be  a  closed  sea  ;  exclusive  juris- 
diction to  only  a  marginal  belt  of  one  hundred  miles  is 
insisted  upon.  To  be  sure,  Mr.  Poletica,  the  Russian 
envoy  to  Washington,  declared  Russia's  right  to  regard 
Behring  Sea  as  a  closed  sea,  and  rested  it  on  reasons  of 
bi-lateral  possessions.  But  that  Russia  did  not  stand 
upon  that  right,  is  evident  from  his  words: 


31 

"  I  ought,  in  the  last  place,  to  request  you  to  consider, 
sir,  that  the  Russian  possessions  in  the  Pacific  Ocean  ex- 
tend, on  the  northwest  coast  of  America,  from  Behring's 
Strait  to  the  fifty-first  degree  of  north  latitude,  and  on  tlie 
opposite  side  of  Asia  and  the  islands  adjacent,  from  the 
same  strait  to  the  forty-fifth  degree.  The  extent  of  sea 
of  which  these  possessions  form  the  limits  comprehends 
all  the  conditions  which  are  ordinarily  attached  to  shut 
seas  (mers  fermees),  and  the  Russian  Government  might 
consequently  judge  itself  authorized  to  exercise  upon 
this  sea  the  right  of  sovereignty,  and  especially  that  of 
entirely  interdicting  the  entrance  of  foreigners.  But  it 
preferred  only  asserting  its  essential  rights,  without  tak- 
ing any  advantage  of  localities."  ' 

Nevertheless,  JohnOuincy  Adams,  at  that  time  Sec- 
retary of  State,  did  not  content  himself  with  scouting  the 
mare  clausum  idea  advanced  by  the  Russian  diplomat, 
but  instantly  took  up  cudgels  in  defense  of  the  privilege 
of  the  United  States  to  enter  even  within  the  limit  of  one 
hundred  miles.  After  opposing  the  coast  claim  set  up 
in  the  ukase,  he  proceeds  thus  : 

"  This  pretension  is  to  be  considered  not  only  with 
reference  to  the  question  of  territorial  right,  but  also  to 
that  prohibition  to  the  vessels  of  other  nations,  including 
those  of  the  United  States,  to  approach  within  lOo  Italian 
miles  of  the  coasts.  From  the  period  of  the  existence 
of  the  United  States  as  an  independent  nation,  their  ves- 
sels have  freely  navigated  those  seas,  and  the  right  to 
navigate  them  is  a  part  of  that  independence.  '•'  *  To 
exclude  the  vessels  of  our  citizens  from  the  shore,  be- 


I  No.   i66.     Let.  Mr.  Poletica  to  Mr.  Adams,  Feb.  28,  1822. 


32 

yond  the  ordinary  distance  to  which  the  territorial  juris- 
diction extends,  has  excited  still  greater  surprise."  ' 

Against  the  7;^rt;r^  claiistun  theory  of  Mr.  Poletica,  he 
urged  an  argument,  of  which  a  well-known  writer  at  that 
time  said:  "  A  volume  on  the  subject  could  not  have 
placed  the  absurdity  of  the  pretensions  more  glaringly 
before  us  :  "  ^ 

"  With  regard  to  the  suggestion  that  the  Russian 
Government  might  have  justified  the  exercise  of  sover- 
eignty over  the  Pacific  Ocean  as  a  close  sea,  because  it 
claims  territory  both  on  its  American  and  Asiatic  shores,  it 
may  suffice  to  say  that  the  distance  from  shore  to  shore 
on  this  sea,  in  latitude  51°  north,  is  not  less  than  90°  of 
longitude,  or  4,000  miles."  ^ 

Diplomatic  agencies  were  thereupon  set  in  motion  to 
harmonize  the  antagonistic  views  of  the  two  countries. 
The  Secretary  of  State  instructed  the  American  Minister 
to  Russia,  Mr,  Middleton,  regarding  the  pending  negotia- 
tions : 

"From  the  tenor  of  the  ukase,  the  pretensions  of  the 
Imperial  Government  extend  to  an  exclusive  territorial 
jurisdiction  from  the  forty-fifth  degree  of  north  latitude, 
on  the  Asiatic  coast,  to  the  latitude  of  51°  north  on  the 
western  coast  of  the  American  continent ;  and  they  as- 
sume the  right  of  interdicting  the  navigation  and  the 
fishery  of  all  other  nations  to  the  extent  of  100  miles 
from  the  whole  of  that  coast. 

*'  The  United  States  can  admit  no  part  of  these 
claims.     Their  right  of  navigation  and  of  fishing  is  perfect, 


1  No.  167.     Let.  Mr.  Adams  to  Mr.  Poletica,  March  30,  1822. 

2  North  American  Review,  Vol.  1 5,  p.  389. 

3  Same  letter. 


33 

and  has  been  in  constant  exercise  from  the  eadiest 
times,  after  the  peace  of  1783,  throughout  the  whole 
extent  of  the  Southern  Ocean,  subject  only  to  the 
ordinary  exceptions  and  exclusions  of  the  territorial 
jurisdictions,  which,  so  far  as  Russian  rights  are  con- 
cerned, are  confined  to  certain  islands  north  of  the  fifty- 
fifth  degree  of  latitude  and  have  no  existence  on  the 
continent  of  America."  ' 

The  outcome  was  the  treaty  of  the  17th  of  April, 
1824.  The  articles  bearing  on  the  point  in  discussion 
are  these  : 

"Art.  I.  It  is  agreed  that  in  any  part  of  the  Great 
Ocean,  commonly  called  the  Pacific  Ocean,  or  South 
Sea,  the  respective  citizens  or  subjects  of  the  high  con- 
tracting powers  shall  be  neither  disturbed  nor  restrained, 
either  in  navigation  or  in  fishing,  or  in  the  power  of  re- 
sorting to  the  coasts  upon  points  which  may  not  already 
have  been  occupied  for  the  purpose  of  trading  with  the 
natives,  saving  always  the  restrictions  and  conditions 
determined  by  the  following  articles." 

"  Art.  III.  It  is  moreover  agfreed  that,  hereafter, 
there  shall  not  be  formed  by  the  citizens  of  the  United 
States,  or  under  the  authority  of  the  said  States,  any 
establishment  upon  the  northwest  coast  of  America, 
nor  in  any  of  the  islands  adjacent,  to  the  north  of  54° 
40'  of  north  latitude ;  and  that,  in  the  same  manner, 
there  shall  be  none  formed  by  Russian  subjects,  or 
under  the  authority  of  Russia,  south  of  the  same 
parallel. 

"  Art.  IV.  It  is,  nevertheless,  understood  that  during 
a  term  of  ten  years,  counting  from  the  signature  of  the 

I  No.   171.   Let.  July  22,   1823. 


pre<=ent  convention,  the  ships  of  both  powers,  or  which 
belong  to  their  citizens  or  subjects,  respectively,  may 
reciprocally  frequent,  without  any  hindrance  whatever, 
the  interior  seas,  gulfs,  harbors,  and  creeks,  upon  the 
coast  mentioned  in  the  preceding  article,  for  the  purpose 
of  fishing  and  trading  with  the  natives  of  the  country," 

England,  after  similar  expostulations  against  the  ob- 
noxious ukase  and  similar  negotiations,  obtained  from 
Russia  a  treaty  the  provisions  of  which  on  the  main 
points  are  identical  with  those  of  the  American  treaty. 
It  was  concluded  February  28,  1825.  Articles  I  of  the 
two  treaties  correspond ;  IV  of  the  American  with  VII  ot 
the  British;  article  III  of  the  British  is  given  to  explain  a 
reference  to  it  in  article  VII. 

"  I. — It  is  agreed  that  the  respective  subjects  of  the 
high  contracting  Parties  shall  not  be  troubled  or  molested, 
in  any  part  of  the  ocean,  commonly  called  the  Pacific 
Ocean,  either  in  navigating  the  same,  in  fishing  therein, 
or  in  landing  at  such  parts  of  the  coast  as  shall  not  have 
been  already  occupied,  in  order  to  trade  with  the  natives, 
under  the  restrictions  and  conditions  specified  in  the  fol- 
lowing articles." 

"III. — The  line  of  demarkation  between  the  posses- 
sions of  the  high  contracting  Parties,  upon  the  coast  of 
the  continent,  and  the  islands  of  America  to  the  North- 
west, shall  be  drawn  in  the  manner  following : 

Commencing  from  the  southernmost  point  of  the 
island  called  Prince  of  Wales  Island,  which  point  lies  in 
the  parallel  of  fifty-four  degrees  forty  minutes,  north  lat- 
itude, and  between  the  one  hundred  and  thirty-first  and 
the  one  hundred  and  thirty-third  degree  of  west  longitude 
(Meridian  of  Greenwich),  the  said  line  shall  ascend  to  the 
north  along  the  channel  called  Portland  CJiannel,  as  far 


35 

as  the  point  of  the  continent  where  it  strikes  the  fifty-sixth 
degree  of  north  latitude  ;  from  this  last-mentioned  point, 
the  line  of  demarkation  shall  follow  the  summit  of  the 
mountains  situated  parallel  to  the  coast,  as  far  as  the 
point  of  intersection  of  the  one  hundred  and  forty-first 
degree  of  west  longitude  (of  the  same  meridian)  ;  and, 
finally,  from  the  said  point  of  intersection,  the  said  merid- 
ian line  of  the  one  hundred  and  forty-first  degree,  in  its 
prolongation  as  far  as  the  Frozen  Ocean,  shall  form  the 
limit  between  the  Russian  and  British  Possessions  on  the 
continent  of  America  to  the  Northwest." 

"VII. — It  is  also  understood,  that,  for  the  space  of 
ten  years  from  the  signature  of  the  present  convention, 
the  vessels  of  the  two  Powers,  or  those  belono-insr  to 
their  respective  subjects,  shall  mutually  be  at  liberty  to 
frequent,  without  any  hindrance  whatever,  all  the  inland 
seas,  the  gulfs,  havens,  and  creeks  on  the  coast  men- 
tioned in  Art.  Ill  for  the  purposes  of  fishing  and  of 
trading  with  the  natives." 

The  effect  of  these  treaties  upon  the  pretensions  of 
Russia  to  the  Behring  Sea,  as  put  forth  in  the  ukase  of 
Alexander,  is  a  subject  of  dispute  between  Great  Britain 
and  the  United  States.  Do  the  terms,  "The  Great 
Ocean,  commonly  called  the  Pacific  Ocean,  or  South 
Sea"  in  Art.  I  of  the  United  States  treaty,  and  "  the  ocean, 
commonly  called  the  Pacific  Ocean"  in  the  British,  in- 
clude the  Behring  Sea  ?  Again,  does  "  the  north-west 
coast  of  America  "  in  Art.  Ill  of  the  American  treaty 
mean  the  entire  northwest  coast  of  the  continent  or 
only  as  far  north  as  the  Alaskan  peninsula  at  the  6oth 
parallel  of  north  latitude  ? 

The  first  question  Mr.  Blaine  answers  in  the  nega- 
tive.    So  confident  is  he  in   the   position    to  which  he 


86 

thereby  commits  the  United  States  and  such  importance 
does  he  attach  to  its  maintenance,  that  he  declares  : 
"  If  Great  Britain  can  maintain  her  position  that  the 
Behring  Sea,  at  the  time  of  the  treaties  \vith  Russia  of 
1824  and  1825,  was  included  in  the  Pacific  Ocean,  the 
Government  of  the  United  States  has  no  well-grounded 
complaint  against  her."  ' 

This  position  he  supports  by  a  list  of  maps  published 
during  the  ninety  years  prior  to  1825,  which  give  a  dis- 
tinctive name  to  the  body  of  water  now  known  as  Behr- 
ing Sea.  Lord  Salisbury  replies  by  citing  thirty  or- 
dinary books  of  reference  of  various  dates  from  1795 
downwards  printed  in  various  countries  which  show  that 
in  customary  parlance  the  Pacific  Ocean  includes  the 
Behring  Sea."  ^  The  relevancy  of  the  enjoyment  by 
the  Behring  Sea  of  a  peculiar  and  distinctive  name,  is 
not  apparent.  For  it  cannot  be  contended  that  the 
Behring  Sea  is  thereby  precluded  from  forming  part  of  a 
larger  whole,  namely,  the  Pacific  Ocean. ^ 

Mr.  Blaine  then  asks:  'Ts  it  possible  that  Mr. 
Canning  and  Mr.  Adams,  both  educated  in  the  Common 
Law,  could  believe  that  they  were  acquiring  for  the 
United  States  and  Great  Britain,  the  enormous  rights 
inherent  in  the  Sea  of  Kamschatka  [one  name  by  which 
Behring  Sea  was  known]  without  the  slightest  reference 
to  that  sea  or  without  any  description  of  its  metes  and 
bounds,  when  neither  of  them  would  have  paid  for  a 
village  house  lot,  unless  the  deed  for  it  should  recite 
every  fact  and  feature  necessary  for  the  identification  of 


1  Let.  Blaine- Pauncefote,  Dec.  17,  1890,-1891. 

2  Let.  Salisbury-Pauncefote,  Feb.  21,  1891.     Conespoiidence  submitted  to  Par- 
liament, Marcli,  1891,  sttpra. 

3  Id. 


37 

the  lot,  against  any  other  piece  of  ground  on  the  surface 
of  the  globe  ?  "  But  cannot  the  question  be  equally 
well  reversed  ?  Is  it  possible  that  Mr,  Canning  and  Mr. 
Adams,  when  neither  of  them  would  have  paid  for  a 
village  house  lot,  unless  the  deed  for  it  should  recite 
every  fact  and  feature  necessary  for  the  identification  of 
the  lot,  would  have  omitted  the  few  words  of  reference 
which  were  necessary  to  include  the  Behring  Sea,  if  there 
had  been  the  slightest  doubt  that  it  was  not  included,  in  the 
phrase  which  they  used  ?  The  intention  of  the  ne- 
gotiators to  include  the  Behring  Sea  in  such  phrase  is 
patent.  What,  otherwise,  could  have  induced  the  Rus- 
sian representative,  Count  Nesselrode,  to  employ  in  the 
treaties  terms  which,  particularly  in  view^  of  the  nature 
and  geographical  extent  of  the  controversy,  could  not 
but  be  open  to  at  least  the  possible  construction  of  in- 
cluding the  Behrihg  Sea  ?  The  expressions  denoting 
the  Pacific  Ocean,  used  in  the  two  treaties,  are,  with 
regard  to  Behring  Sea,  either  general  and  inclusive  or 
else  vague  and  ambiguous.  Only  by  giving  them  the 
general  and  inclusive  interpretation,  can  all  three  nego- 
tiators be  freed  from  the  imputation  of  gross  inexacti- 
tude. 

But  further,  it  is  only  fair  to  infer  that  the  settlement 
contained  in  these  treaties  was  commensurate  with  the 
dispute.  And  that  the  jurisdictional  dispute  extended 
to  the  Behring  Sea,  the  words  of  the  ukase  of  182 1  and 
the  expressions  on  the  part  of  the  United  States  rela- 
ting to  it,  leave  no  doubt.  The  prohibition  contained  in 
the  two  sections  of  that  ukase  applies  to  '' tJie  whole  of 
the  north-zvest  coast  of  America,  beginning  fi''07n  Beh^'ing 
Strait  to  the  fifty-first  degree  of  northern  latitude."  In 
opposing  this    usurpation    of  power,    Mr.    Adams    em- 


38 

ployed  language  which  unquestionably  denied  the  claim 
to  a  band  of  loo  Italian  miles  on  every  portion  of  the 
coast  referred  to.  Scarcely  less  convincing  of  the  com- 
mensurate character  of  that  denial  with  the  claim  aofainst 
which  it  was  aimed,  is  the  entire  correspondence  on  the 
subject,  than  Mr,  Adams'  explicit  statement  to  Mr. 
Middleton  : 

"From  the  tenor  of  the  ukase,  the  pretensions  of 
the  Imperial  Government  extend  to  an  exclusive  ter- 
ritorial jurisdiction  from  the  forty-fifth  degree  of  north 
latitude  on  the  Asiatic  coast,  to  the  latitude  of  51° 
north  on  the  western  coast  of  the  American  continent ; 
and  they  assume  the  right  of  interdicting  the  navigation 
and  the  fishery  of  all  other  nations  to  the  extent  of  100 
miles  from  the  whole  of  that  coast. 

"The  United  States  can  admit  no  part  of  these 
claims."  ' 

In  order  to  gather  from  Mr,  Adams'  words  any  dif- 
ferent meaning,  we  should  have  to  persuade  ourselves, 
as  Lord  Salisbury  declines  to  do,  "that  when  Mr. 
Adams  used  these  clear  and  forcible  expressions  he  did 
not  mean  what  he  seemed  to  say  ;  that  when  he  stated 
that  the  United  States  '  could  admit  no  part  of  these 
claims,'  he  meant  that  they  admitted  all  that  part  of 
them  which  related  to  the  coast  north  of  the  Aleutian 
Islands."  ^ 

Whatever  interpretation  we  find  foregoing  events  put 
upon  the  words  of  the  American  Treaty,  we  must  read 
into  the  same  words  in  the  English.  We  must,  there- 
fore,  conclude,  in  the  words  of  Lord  Lansdowne,   that 


1  No.  171.  Let.  July  22,   1823. 

2  Let.  Salisbiiiy-Pauncefote,  Aug.  2,  1890,-1891. 


39 

• 
••It  is  Impossible  to  believe  that  when,  by  the  convention 

in  1825,  it  was  agreed  that  the  subjects  of  Great  Britain, 
as  one  of  the  contracting  parties,  should  not  be  'troubled 
or  molested  in  any  part  of  the  ocean,  commonly  called 
the  Pacific  Ocean,  either  in  navigating  the  same,  or  in 
fishing  therein,'  any  reservation  was  intended  with  re- 
gard to  that  part  of  the  Pacific  Ocean  known  as  Behring 
Sea.  The  whole  course  of  the  negotiations  by  which 
this  convention  and  that  between  Russia  and  the  United 
States,  of  the  same  year,  were  preceded — negotiations 
which,  as  pointed  out  in  the  report,  arose  out  of  conflict- 
ing claims  to  these  very  waters — points  to  the  contrary 
conclusion."  ' 

To  the  second  of  the  two  questions  growing  out  of 
these  treaties  and  oppositely  answered  by  the  two  gov- 
ernments, Mr.  Blaine  replies  that  "  the  northwest  coast 
of  America,  "  mentioned  in  Art.  Ill  of  the  American 
treaty,  to  which  the  provisions  of  Art.  IV  apply,  ex- 
tends not  to  the  Behring  Strait,  but  only  to  latitude  60°, 
the  beginning  of  the  Alaskan  Peninsula.  He  argues 
that  "the  phrase  'northwest  coast  of  America' has  not  in- 
frequently been  used  simply  as  the  synonym  of  the  'north- 
west coast,'  but  it  has  also  been  used  in  another  sense  as 
including  the  American  coast  of  the  Russian  posses- 
sions as  far  northward  as  the  straits  of  Behring.  Confu- 
sion has  sometimes  arisen  in  the  use  of  the  phrase  'north- 
west coast  of  America,'  but  the  true  meaning  can  always 
be  determined  by  reference  to  the  context."  ^ 

It  seems   unlikely  that  an  expression  so  capable  of 
two  meanino^s  that  the  correct  one  can  be  learned  only 


1  No.  117.  Let.  to  Mr.  Stanhope,  Nov.  29,  1886. 

2  Let.  Blaine-Pauncefote,  Dec.  17,  1890,-1891. 


40 

by  an  examination  of  the  context,  should  have  been  se- 
lected as  the  pivot  of  an  important  treaty  by  Count  Nes' 
selrode  and  John  Ouincy  Adams.  If  however,  the  ex- 
pression be  thus  susceptible  of  two  such  widely  different 
interpretations  and  it  be  used  in  such  a  connection  that 
the  immemediate  context  sheds  no  light  upon  its  meaning-, 
surely  it  is  to  be  given  the  more  obvious  of  the  two  mean- 
ings. "It  is  difficult  to  conceive,"  said  Lord  Salisbury 
"  how  the  term  'northwest  coast  of  America, '  used  here 
and  elsewhere,  can  be  interpreted  otherwise  than  as  ap- 
plying to  the  northwest  coast  of  America  generally,  or 
how  it  can  be  seriously  contended  that  it  was  meant  to 
denote  only  the  more  westerly  portion,  excluding  the 
more  northwesterly  part,  because  by  becoming  Russian 
possession  this  latter  had  ceased  to  belong  to  the  Amer- 
ican continent."  ' 

But  the  only  result  of  success  in  confining  the  phrase, 
"  the  northwest  coast  of  America  "  as  used  in  Art.  Ill,  to 
that  portion  of  the  coast  south  of  the  60°  of  latitude, 
would  be  to  limit  the  territorial  extent  of  the  privilege 
accorded  in  Art.  IV  of  frequenting  the  interior  seas,  gulfs, 
harbors  and  creeks.  It  would  not  affect  the  interpreta- 
tion of  Art.  I. 

If,  on  the  other  hand,  the  phrase  means  what  it 
seems  to  mean,  then  the  concession  of  the  privilege  of 
frequenting  such  interior  seas,  etc.,  on  the  coast  of  the 
Behring  Sea,  as  well  as  on  the  remainder  of  the  north- 
west coast,  shows  conclusively  that  the  privilege  of 
frequenting  every  other  part  of  the  coasts  except  in- 
terior seas,  gulfs,  harbors  and  creeks,  already  existed, — in 
other  words,    that  it  was   conferred  by  Art.  I.      "  The 

1  Let.  Salisbury- Pauncefote,  Aug.  2.  1890,-1891. 


41 

Great  Ocean,  commonly  called  the  Pacific  Ocean,  or 
South  Sea,"  in  the  first  article,  must  therefore,  as  we 
have  already  shown,  include  the  Behring  Sea  ;  and  the 
right  of  United  States  citizens  to  free  navigation  and 
fishing  in  those  waters,  being  based  on  Art.  I,  survived 
the  termination  of  Art.  IV. 

President  Angell  states  that  after  the  expiration  of 
the  rights  conferred  by  Art.  IV,  American  whalers  con- 
tinuously navigated  the  Behring  Sea ;  and  he  argues  from 
this  fact  that  Russia  did  not  regard  the  Behring  Sea  as 
such  an  "interior  sea"  as  could  be  frequented  only  by 
virtue  of  Art.  IV.  If  it  is  not  such  an  interior  sea, 
then,  concludes  he,  it  must  have  been  included  in  the 
phrase,  "  Pacific  Ocean  or  South  Sea,"  used  in  the  first 
article.  In  this  view,  H.  H.  Bancroft,  in  his  "  History 
of  Alaska,"  bears  him  out  by  recounting  the  incident  of 
the  Russian  Minister  of  Foreign  Affairs,  who,  in  1842, 
explicitly  refused  to  send  cruisers  to  interfere  with 
American  whalemen  in  Behring  Sea,  on  the  ground  that 
such  interference  would  be  in  violation  of  the  rights 
conferred  by  Art.  I  of  the  treaty  with  the  United  States. 

At  the  expiration  of  the  term  of  continuance  of  Arti- 
cle IV,  a  question  arose  as  to  what  right  of  frequenting 
unoccupied  coasts  remained  under  Article  I  of  the  same 
treaty.  Mr.  Forsyth,  at  that  time  Secretary  of  State, 
declared  the  meaning  of  the  fourth  article  to  be  the  ex- 
tension of  Article  I,  so  as  to  include  within  its  provis- 
ions interior  bays,  &c.,  occupied  or  about  the  occu- 
pation of  which  there  might  be  doubt.  Accordingly,  the 
expiration  of  that  article  did  not  affect  the  right  granted 
by  Article  I  to  frequent  the  unoccupied  coasts. 

Russia  on  the  contrary  declared  the  American  right 
to  frequent  the  interior  bays,  &c.,  of  Alaska,  occupied  or 


42 

unoccupied,  to  rest  solely  on  Article  IV  and  hence  to  be 
of  only  equal  duration.  ' 

A  settlement  of  this  difference  was  never  reached. 
Russia  refused  to  comply  with  the  request  of  the  United 
States  to  renew  Article  IV.  What  the  rights  in  these 
waters  then  were,  such  they  remained  down  to  the 
cession  of  Alaska  in  1867.  In  that  treaty,  ratified  by  the 
United  States  on  May  28,  1867,  Russia  ceded  to  the 
United  States  a  tract  whereof : 

"  The  western  limit  within  which  the  territories  and 
dominion  conveyed,  are  contained,  passes  through  a 
point  in  Behring's  Straits  on  the  parallel  of  sixty-five  de- 
grees thirty  minutes  north  latitude,  at  its  intersection  by 
the  meridian  which  passes  midway  between  the  islands  of 
Krusenstern,  or  Ignalook,  and  the  island  of  Ratmanoff, 
or  Noonarbook,  and  proceeds  due  north,  without  limita- 
tion, into  the  same  Frozen  Ocean.  The  same  western 
limit,  beginning  at  the  same  initial  point,  proceeds  thence 
in  course  nearly  southwest,  through  Behring's  Straits  and 
Behring's  Sea,  so  as  to  pass  midway  between  the  north- 
west point  of  the  Island  of  St.  Lawrence  and  the  south- 
east point  of  Cape  Choukotski,  to  the  meridian  of  one 
hundred  and  seventy-two  west  longitude  ;  thence,  from 
the  intersection  of  that  meridan  ,  in  a  southwesterly  di- 
rection, so  as  to  pass  midway  between  the  island  of 
Attou  and  the  Copper  Island  of  the  Kormandorski  coup- 
let or  group  in  the  North  Pacific  ocean,  to  the  meridian 
of  one  hundred  and  ninety-three  degrees  west  longitude, 
so  as  to  Include  in  the  territory  conveyed  the  whole  of 
the  Aleutian  Islands  east  of  that  meridian."  ^ 


1  No.   190.     Count  Nesselrode  to  Mr.  Dallas,  April  27,  '38. 

2  No.   191. 


43 

In  a  sea  so  full  of  islands  as  the  Behring,  a  line  sim- 
ilar to  the  one  drawn  in  this  treaty  is  a  terse  method  of 
indicating  the  islands  conveyed.  It  avoids  the  tedium  of 
an  enumeration.  Therefore  the  apparent  grant  of  sea 
which  the  drawing  of  such  a  line  effected  ought  not  to 
deceive.  All  rights  and  privileges  which  Russia  herself 
possessed  in  that  sea  passed  by  another  portion  of  this 
treaty  absolutely  to  the  United  States. 


44 


CHAPTER  IV. 

But  beyond  and  behind  the  question  of  the  claims  of 
Russia  and  their  transfer  to  the  United  States,  is  the 
deeper  question,  have  those  claims  ripened  into  rights? 
and,  if  not,  even  though  their  history  be  such  as  Mr. 
Blaine  contends,  can  England  be  estopped  from  deny- 
ing them  now  ?  Disguise  the  claim  to  mai^e  clausum  as 
you  will,  openly  and  expressly  repudiate  it,  as  the  United 
States  has  done,  the  assertion  of  jurisdiction  over  a 
band  of  one  hundred  Italian  miles  around  the  shores  of 
the  Behring  Sea,  or  over  any  distance  beyond  three 
miles,  is  nothing  less  than  a  revival  of  the  old-time 
doctrine  of  mare  clausum.  Base  that  jurisdiction  on 
its  long  continued  recognition  by  another  nation  as  you 
will,  call  its  present  denial  contra  bonos  mores  and  a 
discrimination  against  the  United  States,  as  Mr.  Blaine 
has  done,  and  you  only  re-echo  the  cry  of  the  Middle 
Ages,  prescription  of  the  sea.  Of  greater  moment 
than  the  winning  of  an  argumentative  point,  is  the  duty 
the  United  States  owes  to  its  national  honor  to  justify 
its  acts  and  validate  its  claims  in  Alaskan  waters  with 
full  knowledge  of,  and  in  strict  conformity  to  the  estab- 
lished principles  of  International  Law.  Let  us  see  how 
far  they  support  these  claims  and  acts. 

Mare  Liberum  vs.  Mare  Clausum. 

"  There  is  no  writer,  there  is  no  government,  which 
would  dream  at  this  day  of  renewing  these  pretensions 
of  another  epoch." ' 

With  this   language,   Ortolan,   the  great   writer   on 


I    Ortolan,  Regies  I,  p.  137. 


45 

maritime  diplomacy,  disposes  of  die  claims  to  national 
sovereignty  over  the  high  seas. 

The  motive  of  inventing  a  patriotic  argument  will 
not  constrain  us  to  incur  the  stionia  of  that  state- 
ment.  We  need  therefore  not  begin  the  inquiry  into  the 
status  of  the  seas,  before  the  time  when  "  Le  principe 
de  la  liberte  des  mers,  tant  combattu  par  I'Angleterre, 
est  sorti  du  champ  des  discussions  theoriques  pour 
entrer  triomphalement  dans  le  domaine  pratique  de 
toutes  les  nations."  ' 

We  may  fix  this  time  roughly  at  the  appearance  of 
Grotius'  "  Mare  Liberum,"  in  1609.  Venice  had  for  cen- 
turies maintained  her  supremacy  over  the  Adriatic. 
Spain  and  Portugal  had,  on  the  foundation  of  naval 
prowess  and  Papal  grant,  set  up  an  extensive  claim  in 
the  Pacific  and  Indian  oceans.  England  ruled  mistress 
of  her  surrounding  seas.  And  Holland  stretched  her 
rod  of  dominion  over  the  North  Sea.  These  preten- 
sions had  their  juristic  champions  in  Father  Paul  Sarpi, 
who,  in  1676,  wrote  a  vindication  of  the  rule  of  Venice 
over  the  Adriatic  ;  and  Selden  (Mare  Clausum,  1635) 
and  Albericus  Gentilis  (Advocatio  Hispanica,  161 3), 
who  succeeded  in  strengthening  for  a  few  years  the 
crumbling  claims  of  England.^  But  this  mist  of  self- 
ish national  pretensions  hanging  over  the  high  seas 
soon  dispersed  before  the  piercing  light  of  international 
principle.  Grotius,  Vattel,^  Puffendorf, '*  and  Bynker- 
shoek,5  have  established  so  firmly  the  law  of  the  freedom 
of  the  ocean,  that  it  can  be  said  with  strict  truth  : 

1  Calvo,  Le  Droit  International,  I,  g  211. 

2  Wlieaton's  Elements,  pp.  267  and  268. 

3  Droit  des  Gens,  1758. 

4  De  Jure  Naturse  et  Gentium,  1672. 

5  De  Dominio  Maris,   1702. 


46 

"Aujourdhui  les  discussions  sur  le  domaine  et  sur 
Fempire  des  mers,  dont  nous  venons  de  tracer  le  tab- 
leau, sont  releguees  dans  le  pur  domaine  de  I'histoire."  * 

But  the  grasp  by  single  nations  of  certain  portions 
of  the  sea  was  so  firm  that  only  by  removing  one  finger 
at  a  time  has  the  union  of  nations  finally  forced  it  to 
relax. 

I.  England  particularly  thought  that  her  sway  over 
the  four  surrounding  seas  furnished  an  instance  of  might 
making  right.  This  claim,  backed  by  the  authority  of 
Albericus  Gentilis,-  she  asserted  over  the  British  Chan- 
nel, from  the  island  of  Quessant,  even  after  she  had 
given  up  the  Duchy  of  Normandy  and  Calais,  "a  cir- 
cumstance," says  Phillimore,  "of  considerable  weight 
with  respect  to  her  claim."  ^  Elizabeth  seized  some 
Hanseatic  vessels  even  off  Lisbon,  for  passing  without 
permission  through  the  sea  north  of  Scotland. '^ 

This  pretension  on  the  part  of  England  consisted 
chiefly  of  the  right  of  exclusive  fishing  and  of  exacting 
from  common  vessels  the  homage  of  salute. ^  But  it 
has  never  been  sanctioned  by  general  acquiescence.^ 

Holland  held  out  strenuously  against  it,  and  Crom- 
well was  forced  to  make  war  upon  her  to  compel  its 
acknowledgment.'  Yet  it  is  true  that  by  payments 
and  by  taking  out  licenses  to 'fish,  the  Dutch  occasionally 
admitted  these  claims,  and  by  the  Treaty  of  West- 
minster,   1674,   they  conceded    in    the  amplest    manner 

1  Ortolan,  I,  p.   137. 

2  Advocatio  Hispanica. 

3  Phillimore's  Commentaries  I,  ^   i8i. 

4  Id. 

5  Phil.  I,  ^   183. 

6  Wheaton,  p.  262. 

7  Id.,  ?   182. 


47 

to  the  English  flag,  the  homage  sought.  Sir  W.  Temple, 
who  negotiated  this  treaty,  speaks,  however,  of  the  right 
hereby  conceded  to  Great  Britain  as  one  "which  had 
never  yet  been  yielded  to  by  the  weakest  of  them  that 
I  remember  in  the  whole  course  of  our  pretence  ;  and 
had  served  hitherto  but  for  an  occasion  of  quarrel, 
whenever  we  or  they  had  a  mind  to  it,  upon  either 
reasons  or  conjectures."  ' 

France  never  formally  acknowledged  the  British 
claims.  In  1689,  Louis  XV  published  an  ordinance  for- 
bidding his  naval  officers  to  give  the  demanded  salute. 
This  insult  to  the  British  flag  was  alleged  by  William 
III,  in  his  manifesto  of  27th  May,  1689,  as  one  of  the 
causes  of  war  with  France.^ 

Yet  since  that  proclamation.  Great  Britain  has  never 
again  insisted  upon  any  such  pretension.  And  even 
in  the  days  of  Charles  II  and  James  II,  Sir  Leoline 
Jenkins,  expounder  of  all  international  law  to  those  mon- 
archs,  had  refused  to  assert  Great  Britain's  dominion 
into  the  sea  beyond  a  line  drawn  from  headland  to 
headland,  comprising  what  are  called  the  King's  Cham- 
bers. 

2.  Denmark  has  from  the  earliest  days  jealously 
guarded  the  three  entrances  to  the  Baltic,  the  Greater 
and  Lesser  Belt  and  the  Sound  ;  and  exacted  toll  from 
passing  commerce.  ^  The  Danish  jurists  rested  this 
right  upon  immemorial  prescription  and  treaties.  The 
earliest  of  these  treaties  is  that  with  the  Hanseatic 
Republics    in    1368;    and    the    right   was    subsequently 


1  Phil.  I,  §  184. 

2  Id.,  ?   186. 

3  Wheaton,  p.  264. 


48 

confirmed  by  treaties  with  all  the  maritime  powers. 
Although  by  the  treaty  of  Roeskild,  1658,  the  Province 
of  Scania  was  ceded  to  Sweden,  yet  Denmark  pre- 
served her  dominion  over  these  straits  intact  by  the 
payment  to  Sweden  of  a  compensation/ 

Underlying-  Denmark's  jurisdiction  over  the  pas- 
sages which  form  the  key  to  the  Baltic,  was  her  just 
rieht  to  remuneration  for  maintainino-  alonor  these  coasts 
lighthouses  and  buoys. ^  To  this  element  of  the  claim 
is  undoubtedly  due  the  fact  that  not  until  1857  were 
these  Danish  straits  recognized  as  free.  The  great 
European  powers  then  paid  to  Denmark  a  gross  sum 
for  the  perpetual  maintenance  of  proper  coast  and 
channel  demarcation. ^  And  on  April  11,  1857,  the 
same  privilege  was  secured  to  the  United  States  by  the 
payment  of  $393,011.'^ 

But  at  the  beginning  of  the  Seventeenth  Century, 
Denmark  had  put  forward  much  broader  claims  than 
those  just  mentioned.  In  1602,  Queen  Elizabeth  sent 
to  Copenhagen  an  embassy  to  adjust  generally  the 
relations  between  the  two  countries.  The  instructions 
given  it  were  these  : 

"And  you  shall  further  declare  that  the  Lawe  of 
Nations  alloweth  of  fishing  in  the  sea  everywhere,  *  * 
*  so  if  our  men  be  barred  thereof,  it  should  be  by 
some  contract." 

"  Sometime,  in  speech,  Denmark  claymeth  propertie 
in  that  sea,  as  lying  between  Norway  and  Island, — both 
sides  in  the  dominion  of  oure  loving  brother  the  King ; 


1  Wheaton,  p.  265  ;    Phil.  I,  |  179. 

2  Twiss'  Rights  and  Duties  of  Nations  in  Time  of  Peace,  \  179. 

3  Phil.  I,  I  179. 

4  Wheaton,  p.  266,  note. 


49 

supposing  thereby  that  for  the  propertie  of  a  whole  sea^ 
it  is  sufficient  to  have  the  banks   on   both  sides,   as  in 
rivers.       Whereunto    you    may    answere,   that    though 
property  of  sea,  in  some  small  distance  from  the  coast, 
male  yeild  some  oversight  and  jurisdiction,   yet  use  not 
princes  to   forbid   passage  or  fishing,  as  is  well  seen  in 
our  seas  of  England,  and  Ireland,  and  in  the  Adriaticke 
Sea  of  the    Venetians,   where   we   in   ours  and    they   in 
theirs,  have  propertie  of  command  ;    and  yet  we  neither 
in  ours,   nor  they  in  theirs,  offer  to  forbid  fishing,  much 
lesse  passage  to  ships  of  merchandize  ;    the   which  by 
Lawe    of     Nations    cannot    be    forbidden    ordinarilie  ; 
neither   is    it    to    be    allowed  that  propertie    of  sea    in 
whatsoever   distance    is    consequent   to    the    banks,    as 
it    happeneth    in    small    rivers.        For    then,     by    like 
reason,    the  half  of  every  sea  should  be   appropriated 
to  the  next  bank,  as  it  happeneth  in  small   rivers,   when 
the  banks  are  proper  to  divers  men  ;    whereby  it  would 
follow  that  no  sea  were  common,   the  banks  on  every 
side  being  in  the  propertie  of  one  or  other ;    wherefore 
there  remaineth  no  color  that  Denmarke  may  claim  any 
propertie    in    those    seas,    to   forbid  passage   or  fishing 
therein."'      *      * 

The  constant  opposition  of  both  Holland  and  Eng- 
land to  these  pretensions  of  Denmark,  sufficed  to 
reduce  them  so  late  as  the  eighteenth  century  only  to 
the  contracted  form  of  exclusive  fishing  within  fifteen 
miles  of  Iceland.^  The  capture  in  1740  by  a  Danish 
man-of-war  of  Dutch  vessels  fishing  within  the  pre- 
scribed   limits,    and   their   subsequent   condemnation   at 


1  Phil.  I,  g   189  citing  Rymer  Foed.,  t.  -xvi,  pp.  433-4. 

2  Phil.  I,    §    190  and   I91. 


50 

Copenhagen,  led  to  a  vehement  protest  on  the  part  of 
the  States  General.'  In  the  Remonstrance  to  the 
Danish  Government,  passed  April  17,  1741,  they 
declared  that  the  sea  being  free,  it  was  proper  for  every 
one  to  fish  in  it,  "  pourvu  qu'il  ne  fasse  pas  d'une 
maniere  indue."  Fishing  within  four  German  miles  of 
the  coast  was  not  such  a  "maniere  indue;"  for 
although  Denmark  might  make  such  a  mtmicipal  prohi- 
bition binding  on  her  own  subjects,  she  could  not 
convert  it  into  an  international  oblio^ation.^ 

3.  The  peculiar  status  to-day  of  the  Dardanelles, 
Bosphorus  and  Marmora  Sea,  rests  on  treaty  regulation. 
In  the  days  when  the  shores  of  the  Black  Sea  were 
entirely  within  her  domain,  the  Porte  was  entitled  to  the 
exclusive  exercise  of  jurisdiction  over  these  marine 
avenues.  But  when  Russia  obtained  a  foothold  on  the 
Black  Sea,  she  acquired  by  international  law  an  ease- 
ment of  communication  with  the  Mediterranean.  Owing, 
however,  to  the  non-recognition  of  Christian  law  by  the 
Turks,  this  rig-ht  was  not  orranted  to  Russia  until  the 
treaty  of  1774.  Subsequent  treaties  with  Austria  in 
1784,  with  Great  Britain  in  1799,  with  France  in  1802, 
and  with  Prussia  in  1806,  secured  to  these  powers  the 
same  free  navigation  for  merchant  vessels. ^  So  in  1829 
by  the  Treaty  of  Adrianople  the  same  privilege  was 
conceded  to  all  European  nations  in  amity  with  the 
Porte. '^     On  February  25,    1862,   the  rights  of  the  most 


1  Id.  I,  \    192. 

2  Martens,  Causes  Cel^bres,  Vol.  I,  pp.  281-2. 

3  Tvviss,  \   180;  Wheaton,  p.  263. 

4  Sept.  2,  Wheaton,  p.  263;  Martens,  Nouveau  Recueil,   vol.    viii,  p.   143,  at 
1.17. 


51 

favored  nations  with  regard  to  passage   through  these 
straits  were  accorded  to  the  United  States.' 

But  Turkey  still  claims  the  power  to  exclude  from 
these  seas  foreign  war  ships.  Immemorially  asserted, 
this  claim  has  been  formally  sanctioned  by  the  European 
powers  in  the  treaties  at  London,  July  13,  1841,'  and  at 
Paris,  March  30,  1856.3 


1  Wheaton,  p.  264,  note.     Wheaton's  History  of  Law  of  Nations,  583-5. 

2  Martens,  N.  R.  Gen.  t.  II,  p.  129;  Wheaton,  p.  263. 

3  Martens,  N.  R.  Gen.  t.  XV,  p.  785 ;  Wheaton,  p.  264,  note. 


52 

CHAPTER   V. 

Prescription. 

Although  prescription  is  but  a  method  of  acquisition 
of  property  and  cannot  be  invoked  to  acquire  what  is  in 
itself  incapable  of  acquisition,  yet  it  is  sometimes  thought 
to  have  this  maoic  effect. 

In  addition  to  the  preceding  history  which  shows 
property  in  or  control  over  the  high  seas,  by  whatever 
means  acquired,  to  be  incompatible  with  the  rights  of 
other  nations,  there  is  the  direct  authority  of  Inter- 
national Law  to  the  effect  that  prescription  or  imme- 
morial use  does  not  appertain  to  the  sea.  Indeed  it  is 
extremely  doubtful  whether  prescription  has  a  place  in  any 
branch  of  the  law  of  nations  whatever.  Unlike  adverse 
possession  or  limitation,  prescription  rests  for  its  valid- 
ity on  a  presumed  prior  grant.  Now  in  International 
Law  there  is  no  room  for  such  a  presumption.  His- 
tory is  not  so  susceptible  of  oblivion  or  national  archives 
of  destruction  as  to  call  it  into  existence. 

On  the  other  hand,  exact  and  artificial  ideas  like 
adverse  possession  and  limitation  are  utterly  incon- 
sistent with  such  undeveloped  legislative  and  adminis- 
trative organs  as  are  the  international.^ 

But  however  it  may  be  with  international  prescrip- 
tion in  general,  it  is  certain  that  international  juris- 
prudence does  not  recognize  prescription  against  the 
sea.     Vattel  clearly  states  this  : 


I  Rayneval,  1.  TI,  ch.  VIII,  |§  i  and  2;  Hautefeuille,  vol.  I,  p.  47  ;  Martens, 
Pr6cis,  1.  II,  ch.  IV,  >/,l  70  and  71.  But  see  contra  Phillimore,  g^  256-259;  Vattel, 
1.  II,  ch.  X,  ^?  140-151. 


58 

"As  the  rights  of  navigation  and  of  fishing,  and 
other  rights  which  may  be  exercised  on  the  sea,  belong 
to  the  class  of  those  rights  of  mere  ability  [jura  mercB 
facuUatis),  which  are  unprescriptable,  they  cannot  be 
lost  for  want  of  use.  Consequently,  although  a  nation 
should  happen  to  have  been,  from  time  immemorial,  in 
sole  possession  of  the  navigation  or  fishery  in  certain 
seas,  it  cannot,  on  this  foundation,  claim  an  exclusive 
right  to  those  advantages.  For,  though  others  have  not 
made  use  of  their  common  right  to  navigation  and 
fishery  in  those  seas,  it  does  not  thence  follow  that  they 
have  had  any  intention  to  renounce  it,  and  they  are 
entitled  to  exert  it  whenever  they  think  proper."' 

Phillimore  uses  nearly  the  same  language  : 

"The  right  of  navigation,  fishing  and  the  like,  upon 
the  open  sea,  being  jura  merce  facultatis,  rights  which 
do  not  require  a  continuous  exercise  to  maintain  their 
validity,  but  which  may  or  may  not  be  exercised  accord- 
ing to  the  free  will  and  pleasure  of  those  entitled  to 
them,  can  neither  be  lost  by  non-user  or  prescribed 
against,  nor  acquired  to  the  exclusion  of  others  by 
having  been  immemorially  exercised  by  one  nation  only. 
No  presumption  can  arise  that  those  who  have  not 
hitherto  exercised  such  rights,  have  abandoned  the 
intention  of  ever  doing  so."^ 

Calvo  recognizes  the  temptation  which  the  proximity 
to  the  coast  of  "fish,  oysters  and  other  shell-fish" 
affords  to  nations,  to  extend  their  sovereignty  beyond 
the  three-mile  limit.  Yet,  instead  of  permitting  such  an 
extension,     even    when    supported    by    long    use,     he 


1  Vattel,  1.  I,  ch.  XXIII,  g  285. 

2  Phil.  I,  §   174. 


54 

distinctly  says  :  "  De  pareilles  derogations  aux  prin- 
cipes  universellement  reconnus  '"'  ont  besoin,  *  pour 
devenir  obligatoires,  d'etre  sanctionnees  par  des  con- 
ventions expresses  et  ecrites."  ' 

It  is   true   that  Vattel   in  another  section  observes  : 

"Ou'une  nation  en  possession  dela  navigation  et  de 
la  peche  en  certain  parages,  y  pretende  un  droit  exclusif 
et  defende  a  d'autres  d'y  prendre  part ;  si  celles-ci 
obeissent  a  cette  defense,  avec  de  marques  suffisantes 
d'acquiescement,  elles  renoncent  tacitement  a  leur 
droit  en  faveur  de  cellela,  et  lui  en  etabhssent  un 
qu'elle  peut  legitimement  soutenir  contre  elles  dans 
la  suite,  surtout  lorsqu'il  est  confirme  par  un  long 
usaoe."  ^ 

And  that  Phillimore  quotes  this  language  with  the 
remark:  "The  reasoninof  of  Vattel  does  not  seem  to 
be  unsound."  ^  But  the  passage  quoted  in  no  wise 
supports  prescription  in  the  sea.  The  right  to  which 
Vattel  here  refers,  and  which  he  says  one  nation  may 
acquire  to  the  exclusion  of  others,  springs  not  from 
"long  usage,"  but  from  the  obedience  of  other  nations 
to  the  prohibition  of  one,  accompanied  by  what  he 
calls  "marques  suffisantes  d'acquiescement."  He 
merely  adds  as  something  over  and  above  what  is 
necessary  to  the  establishment  of  this  right,  ^'surtout 
lorsquil  est  confirme  par  un  long  usage." 

Wheaton  refers  to  this  passage  from  Vattel  when,  in 
laying  down  the  proposition  that  the  sea  can  never  be 
appropriated,  he  says  : 


'      \    20I. 

2  Vattel  1.  I,  ch.  XXIII,  I  286. 

3  Phil.  I,  I   176. 


55 

"The  authority  of  Vattel  would  be  full  and  explicit 
to  the  same  purpose  were  it  not  weakened  by  the  con- 
cession that  thougrh  the  exclusive  rio-ht  of  navio-ation  or 
fishery  in  the  sea  cannot  be  claimed  by  one  nation  on 
the  ground  of  immemorial  use,  nor  lost  to  others  by 
non-user  on  the  principle  of  prescription,  yet  it  may  be 
thus  established  where  the  non-user  assumes  the  nature 
of  a  consent  or  tacit  agreement,  and  thus  becomes  a  title 
in  favor  of  one  nation  against  another."^ 

Thus  the  above  lanofuaofe  of  Vattel  cannot  be  cited 
as  authority  for  any  broader  rule  than  that  an  exclusive 
right  in  the  sea  may  be  acquired  by  one  nation  by 
virtue  of  the  constructive  consent  or  tacit  agreement 
on  the  part  of  others.  Such  a  rule  would  be  far  from 
establishing  prescription  ;  for  a  simple  lapse  of  time  is, 
as  we  have  seen  above,  not  "a  sufficient  mark  of 
acquiescence"  on  the  part  of  other  nations,  even  if  the 
other  nations  failed  to  object  to  the  exercise  of  such 
exclusive  right,  or  voluntarily  executed  the  ordinances 
of  the  excludinof  nation.^ 

Although  we  do  not  deny  the  principle  of  Vattel  here 
enunciated,  it  is  difficult  to  see  what,  except  express 
treaty  stipulations,  could  constitute  "marques  suffisantes 
d'acquiescement."  Phillimore  confesses  of  this  prin- 
ciple :  "The  case  for  its  application  is  not  often  likely 
to  occur."  3  Lord  Stowell  says:  "The  general  pre- 
sumption certainly  bears  strongly  against  such  exclusive 
rights,  and  the  title  is  a  matter  to  be  established  on  the 


1  Wheaton,  p.  268. 

2  Hautefeuille,  vol.,  I.  p.  44. 

3  Phil.  I,  §  176. 


56 

part  of    those   claiming   under  it     *     *     by   clear  and 
competent  proof."  ' 

Could  such  a  tacit  consent  be  found,  the  exclusive 
right  founded  upon  it  would  appear  to  have  as  good  a 
raison  d'etre  as  if  granted  by  express  treaty.  History 
contains  many  notable  instances  of  a  nation  waiving  its 
privileges  in  favor  of  another  by  treaty,  thereby  constitu- 
ting an  exclusive  right  in  the  grantee  nation  over  against 
the  grantor  nation.     As  Phillimore  says  :  ^ 

"A  nation  may  acquire  an  exclusive  right  of  naviga- 
tiofi  and  fishing  of  the  main  ocean  as  agamst  another 
nation  by  virtue  of  specific  provisions  of  a  treaty  ;  for  it 
is  competent  to  a  nation  to  renounce  a  portion  of  its 
riofhts."  3 

A  prominent  illustration  to-day  is  the  agreement 
with  China,  by  virtue  of  which  Great  Britain  has  juris- 
diction over  British  subjects,  "  being  within  the 
dominions  of  the  Emperor  of  China,  or  being  within  any 
ship  or  vessel  at  a  distance  of  not  more  than  one 
hundred  miles  from  the  coast  of  China." 

But  such  treaties  do  not  confer  upon  the  grantee 
nation  the  property  in  the  sea  over  which  it  is  entitled 
to  exercise  exclusive  jurisdiction.  As  Hautefeuille  says, 
the  consent  even  of  all  nations  could  not  confer 
sovereignty     over   the  seas.^      (And,  as  he  here  adds, 


1  The  Twee  Gebroeders,  3  C.  Rob.  p.  339.  The  dictum  credited  to  Lord 
Stowell  in  his  opinion  in  this  case,  "  Portions  of  the  sea  are  prescribed  for,"  is 
shown  by  the  context  not  to  apply  to  the  high  sea.  Twiss,  ?  175,  cites  this  opinion 
without  comment.  His  reference  at  this  place  to  Story  in  "  The  Schooner  Fame,"  3 
Mason  p.  1 50  is  an  error  ;  it  is  intended  for  the  preceding  sentence. 

2  Phil.  I,  \   173. 

3  Phil.  I,  \   172. 

4  Hautefeuille,  vol.  I,  p.  47. 


57 

what  the  express  consent  of  nations  cannot  accomph'sh, 
prescription  cannot.)  The  right  so  granted  is  one 
which  rests  solely  upon  the  bona  fides  of  the  nation 
according  it,  and  is  made  permanent  only  by  estoppel.' 

I  Phil.  I,  I  174  citing  Ulpian  Dig.,  1.  VIII  t.  IV,  leg.  13. 


58 


CHAPTER  VI. 

Exceptions  to  the  Rule  of  Mare  Liberum. 

Yet  the  welfare  and  safety  of  nations  has  always  de- 
manded that  certain  portions  of  the  sea  should  be  subject 
to  their  dominion.  This  principle  has  existed  side  by 
side  with  that  of  the  freedom  of  the  seas.  By  the  inter- 
action and  attrition  of  these  two  forces  in  the  chaos  of 
national  claims,  there  has  been,  evolved  the  law  on 
maritime  sovereignty  of  to-day. 

In  general,  whenever  the  reasons  for  the  law  of  free 
sea  cease,  the  law  ceases.     These  reasons  are  given   by 
the  best  writers  as  two-fold,'  and  are  tersely  expressed 
by  Ortolan,  as  follows: 

"  II  n'y  a  que  deux  raisons  decisives  sans  replique.  Tune 
physique,  materielle,  I'autre  morale,  purement  rationelle. 
L'impossibilite  de  la  propriete  des  mers  resulte  de  la 
nature  de  cet  element,  qui  ne  pent  etre  possede  et  qui 
sert  essentiellement  aux  communications  des  hom- 
mes  '•'■  ^'\  L'impossibilite  del'empire  des  mers  resulte 
de  I'egalite  des  droits  et  de  I'independance  reciproque 
des  nations."  ^ 

The  portions  of  the  sea  which  are  thus  regarded  as 
falling  outside  the  pale  of  these  objections  are  : 

A.  Gulfs  and  bays. 

B.  Enclosed  seas  {ntaria  clmisa). 

C.  Straits. 

D.  Marorinal  belt. 

o 

These  terms  include,  of  course,   all  bodies  of  water 


1  Wheaton,  p.  269. 

2  Ortolan  I,  p.  112.     Sommaire  de  ch.  7. 


59 

bounded  by  similar  formations  of  coast  line,   although 
called  by  other  names. 

Within  certain  limits,  which  we  shall  now  study,  such 
bodies  of  water  are  subject  to  national  jurisdiction. 

I.     When  the  Shores  belong  to  one  Nation. 
A. —  G2dfs  and  Bays. 

Wheaton. tests  gulfs  and  bays  by  the  standard  above 
mentioned  and  finds  that  the  two  objections  to  sover- 
eignty over  the  high  seas  do  not  apply  to  them.  For, 
says  he,  "the  State  possessing  the  adjacent  territory  by 
which  these  waters  are  partially  surrounded  and  enclosed, 
has  that  physical  power  of  constantly  acting  upon  them, 
and,  at  the  same  time,  of  excluding  at  its  pleasure,  the 
action  of  any  other  State  or  person  which  *  '•'  con- 
stitutes possession.  These  waters  cannot  be  considered 
as  having  been  intended  by  the  Creator  for  the  com- 
mon use  of  all  mankind,  any  more  than  the  adjacent 
land     ===     '^     .'" 

This  reasoning  obviously  is  true  only  so  long  as  the 
entrance  to  the  bay  or  gulf  from  the  sea  is  narrow  enough 
to  be  defended  against  intruders.  But  Pomeroy  points 
out  that  the  pretension  of  England  on  her  own  coasts 
is  that  such  bodies  of  water  are  ?nare  claustim  irrespec- 
tive of  the  breadth  of  their  communication  with  the  sea.^ 

There  is  no  warrant  for  such  a  narrow  limit  as  set 
by  Martens:  2  "  Surtout  en  tant  que  ceux-ci  ne  passent 


1  Wheaton,  p.  270. 

2  Lectures  on  International  Law,  \  147  ;  but  see  infra,  under  "  Headlands." 

3  Precis,  1.  ii,  c.  i,  ^  40. 


60 

pas  la  largeur  ordinaire  des  rivieres,  ou  la  double  portee 
du  cannon."  Nor  for  the  vague  definition  of  Grotius  : ' 
"  Mare  occupare  potuisse  ab  eo  qui  terras  ad  latus 
utrumque  possideat,  etiamsi  aut  supra  patet  ut  sinus,  aut 
supra  et  infra  ut  fretum,  dummodo  non  ita  magna  sit 
pars  maris  ut  non  cum  terris  comparata  portio  earum 
videri  possit."  ^ 

"  The  real  question  ^'  *  is,  whether  it  be  within 
the  physical  competence  of  the  nation,  possessing  the 
circumjacent  lands,  to  exclude  other  nations  from  the 
whole  portion  of  the  sea  so  surrounded."  ^  The  principle 
here  then  may  be  stated  in  Vattel's  terse  expression  : 
"  Une  bale  dont  on  pent  defendre  I'entree,  peut  etre 
occupee  et  soumise  aux  lois  du  souverain."  "^ 

On  authority  it  is  immaterial  whether  this  defense  be 
natural  or  artificial, ^ — whether  the  mouth  be  blocked  by 
"islands,  banks  of  sand  or  rocks  "  ^  or  swept  "by  the 
cross-fire  of  cannons."  ^  So  that  now  it  is  "res  adjudi- 
cata  that  the  only  question  is  whether  a  given  sea  or 
sound  is,  in  fact,  as  a  matter  of  politico-physical  geogra- 
phy, within  the  exclusive  jurisdiction  of  one  nation."  ^ 

But  this  limit  of  the  mouth  of  an  inner  gulf  or  bay, 
above  set  forth,  is  in  the  case  of  a  particular  country 
liable   to   be  extended  or  contracted,    according  to  the 


1  De  Jure  etc.,  Lib.  ii,  cap.  iii,  \  8. 

2  Phil.  I,  \  200. 

3  Phil.  I,  g   200. 

4  Droit,  1.  i,  ch.  xxiii,  \  291.     See   also  Phil.  I,  \   200;    Kliiber,  \  130 ;  Twiss, 

\  174- 

5  Ortolan,  p.  145.     Phil.  I,  \  200,  citing    Martens,  Priwae  Lineae  Juris   Gen- 
iium,\.  IV  c.  IV,  §110. 

6  Calvo  I,  §  190. 

7  Id. 

8  Dana's  Wheaton,  270,  note. 


61 

recognition  or  non-recoenition  of  the  doctrine  of  "head- 
lands."  This  doctrine  will  be  discussed  under  the 
head  of  "  Maroinal  Belt." 


B. — Eficlosed  Seas. 

These  are  the  seas  which  the  territory  of  one  or 
more  nations  entirely  surrounds.  Ortolan  is  very 
particular  about  the  absolutely  close  character  of  this 
territorial  surrounding.  "  Un  droit  exclusif  de  domaine 
et  de  souverainete  de  la  part  d'une  nation  sur  une  telle 
mer  n'est  incontestable  qu'autant  que  cette  mer  est 
totalement  enclavee  dans  le  territoire  de  telle  sorte  qu'elle 
en  fait  partie  integrante,  et  qu'elle  ne  pent  absolu- 
ment  servir  de  lien  de  communication  et  de  com- 
merce qu'entre  les  seuls  citoyens  de  cette  nation."  ' 
Though  perhaps  Twiss  more  exactly  defines  an 
interior  sea,  when  he  says  that  it  "  is  entirely  enclosed 
by  the  territory  of  a  nation,  and  has  no  other  communi- 
cation with  the  ocean  than  by  a  channel,  of  which  that 
nation  may  take  possession."  ^ 

The  Black  and  Caspian  Seas  are  the  usual  illustra- 
tions of  this  kind  of  sea.^  The  former,  however,  by  the 
treaty  of  Pads,  in  1856,  confirming  previous  treaties, 
has  been  made  free.'^ 

Seas  land-locked,  though  not  entirely  surrounded 
by  land,  like  the  Baltic  Sea,  fall  under  the  same  rule.^ 
But  in  the   case  of  the   Baltic   Sea,  the  dominion   must 


1  Ortolan,  I,  p.  147. 

2  Twiss,  \  174. 

3  Phil.  I,  \  205. 

4  Pomeroy,  ?  I43- 

5  Pomeroy,  ?  143  ;   Phil.,  I,  \  206. 


62 

be  termed  qualified  rather  than  absolute,  owing  to  the 
fact  that  the  sovereignty  of  its  shores  is  divided  among 
several  nations.  This,  as  we  shall  hereafter  see,  sub- 
jects a  sea  to  the  innocent  use  of  other  nations.' 

C. — Straits. 

The  only  question  which  can  arise  here,  is  in  the 
case  of  straits  which  connect  two  free  seas.  Straits 
leading  into  an  inner  bay,  or  enclosed  sea,  are  subject  to 
the  same  rules  which  are  applied  to  those  bodies  of 
water  themselves.^ 

There  are  two  extreme  theories  about  straits  both 
banks  of  which  belong  to  one  and  the  same  nation,  and 
which  join  two  open  seas.  One  is,  that  be  they  never  so 
narrow  and  therefore  capable  of  possession,  yet  they  are 
not  subject  to  national  domination.  The  other,  that  with- 
out regard  to  their  width  or  defensibility,  they  fall  under 
the  jurisdiction  of  the  bordering  country.  The  first  view 
is  held  by  Calvo.^  Ortolan,"^  Rayneval,  Pomeroy,^  and 
Wheaton  ^  ;  the  second  by  Phillimore  ^  and  Puffendorf.^ 
There  is  also  a  third  view,  represented  by  J.  L.  Kliiber,  ' 
Pinheiro-Ferreira,  Twiss  "  and  Martens,"  which  makes 
even  here  capability  of  defense  the  test  of  sovereignty. 
According  to  this  last  view,  those   straits  would  be   free 

1  Ortolan,  I,  p.  147  ;  Pomeroy,  \  143. 

2  Calvo,  I,  \  191. 

3  I,  I  191. 

4  I,  p.  146. 

5  I  139- 

6  p.  272,  \  190. 
7  I,  I  189. 

8  L.  IV,  C.  V,  \  8. 

9  \  130. 

10  \  174. 

11  Law  of  Nations,  B.  IV,  Ch.  IV,  ?  13. 


63 

in  which  a  ship  passing  along  the  centre  is  beyond  the 
range  of  cannon. 

The  reason  for  the  first  rule  is  best  expressed  by 
Rayneval  :  "Si  1' usage  de  ces  mers  est  libre,  la  com- 
munication doit  I'etre  egalement  ;  car  autrement  la 
liberte  de  ces  memes  mers  ne  serait  qu'une  chimere."  ^ 

"  It  is  not  sufficient,  therefore,"  says  Ortolan,  "  in 
order  that  property  in  a  strait  may  be  attributed  to  a 
nation,  mistress  of  its  shores,  to  say  that  in  fact  the 
strait  is  in  the  power  of  this  nation  ;  that  it  has  the 
means  to  control  the  passage  by  its  artillery,  or  by 
any  other  mode  of  action  or  defense.  *  *  The 
material  obstacle  to  proprietorship  being  removed,  there 
always  remains  the  moral  obstacle,  the  essential  and 
inviolable  power  of  peoples  to  communicate  with  each 
other."  ^ 

But  this  view  concedes  to  the  borderinor  State  the 
right  to  charge  such  tolls  as  shall  compensate  it  for  light- 
houses, buoys  and  pilots. ^  And  subjects  ships  passing 
under  the  cannon  of  that  country  to  such  reasonable 
regulations  of  navigation  as  it  may  make.'^ 

The  second  and  third  rules  are  based  on  the  safety  of 
the  bordering  nation. ^  They,  in  turn,  mitigate  their  rigor 
by  adopting  the  doctrine  of  what  Vattel  calls  "innocent 
use."  ^  "  One  must  remark  in  particular,"  he  says,  "  with 
respect  to  straits,  that  when  they  serve  for  a  communica- 
tion between  two  seas,  the  navigation  of  which  is  common 


1  Inst,  du  droit  de  la  nature  et  des  gens.  L.  2,  Ch.  9,  ^  7. 

2  Ortolan,  I,  p.  146.     See  also  Wheaton,  p.  272,  ^  190. 

3  Grotius,  L.  II,  C.  Ill,  §  14. 

4  Ortolan,  I,  p.  149;  Bluntschli,  Buch  IV,  ^  310. 

5  Vattel,  1,  I.  Ch.  XXIII,  ^  292. 

6  Id.;  Twiss,  \  174. 


64 

to  all  nations,  or  to  several,  that  nation  which  possesses 
the  strait  cannot  refuse  passage  thereon  to  the  others, 
provided  that  such  passage  be  innocent  and  without 
danger  to  her.  In  refusing  it  without  just  reason,  she 
would  deprive  that  nation  of  an  advantage  which  is 
accorded  to  her  by  nature  ;  and  still  further,  the  right  of 
such  passage  is  a  residue  of  the  primitive  common  rights."  ' 

Pomeroy,  however,  rightly  observes  that  "  Any  ap- 
parent difficulty  or  discrepancy  will  vanish  when  we  con- 
sider the  various  kinds  and  degfrees  of  rights  which  a 
nation  may  exercise  over  such  waters.  *  *  It  can 
hardly  be  said  of  any  such  strait,  even  though  it  be  so 
wide  as  not  to  be  commanded  from  the  shores,  that  the 
right  to  fish,  or  to  traverse  with  armed  ships,  as  well  as 
with  ships  of  commerce,  is  given  by  the  general  law  to 
all  peoples  ;  while  at  the  same  time,  it  can  be  said  of 
few  or  none,  that,  independent  of  convention,  the  inno- 
cent use  for  purposes  of  traffic  and  intercommunication 
is,  or  may  be,  forbidden."  ^ 

We  derive  therefore  from  all  this  discussion  the 
principle  that  a  nation  owning  both  sides  of  a  strait 
connecting  two  free  seas,  has  the  property  in  or 
dominion  over  such  strait ;  subject,  however,  to  an  ease- 
ment  of   passage,    or   right  of  way  in  other  nations. 

D.—Maro-ma/  Belt. 

I.       IN    GENERAL. 

A  nation  has  always  been  deemed  to  command  so 
much  of  the  open  sea  off  its  coast-line  as  it  could  protect 

Twiss,  §  174. 
2  \  139- 


65 

from  the  shore.  In  early  days,  therefore,  this  limit  was 
found  in  the  longest  stone's-throw  or  the  farthest  flight 
of  an  arrow,'  A  further  application  of  this  principle  of 
limitation,  '*  Potestatem  terrae  finiri,  ubi  finitur  armorum 
vis,"  ^  eventually  increased  the  distance  to  cannon-range. 
At  the  time  of  the  Qrrowing-  recocrnition  of  International 

o  o  o 

Law  in  the  seventeenth  and  early  eighteenth  century 
when  the  writers  discussed  and  fixed  this  limit,  cannon- 
range  happened  to  be  three  marine  miles.  Thus  for  a 
time  the  two  terms,  three  miles  and  cannon-ranofe,  were 
equivalents.  But  a  precise  limit  having  once  been 
adopted,  International  Law  was  loath  to  leave  it ;  and  it 
has  not  since  succeeded  in  totally  divorcing  itself  from  it. 
Although  recognized  to-day  as  arbitrary,  this  limit  of 
three  miles  has  the  merit  of  precision,  and  has  been  sanc- 
tioned in  many  instances  by  laws  and  treaties.  Let  Mr. 
Seward  be  the  exponent  of  this  sentiment : 

"  The  publicists  rather  advanced  towards  than  reached 
a  solution  when  they  Mid  down  the  rule  that  the  limit  of 
the  force  is  the  range  of  a  cannon-ball.  The  range  of  a 
cannon-ball  is  shorter  or  longer  according  to  the  circum- 
stances of  projection,  and  it  must  be  always  liable  to 
change  with  the  improvement  of  the  science  of  ordnance. 
Such  uncertainty  upon  a  point  of  jurisdiction  or  sover- 
eignty would  be  productive  of  many  and  endless  contro- 
versies and  conflicts.  A  more  practical  limit  of  natural 
jurisdiction  upon  the  high  seas  was  indispensably  neces- 
sary, and  this  was  found,  as  the  undersigned  thinks,  in 
fixing  the  limit  at  three  miles  from  the  coast."  ^ 


1  Bluntsclili,  Bucli  IV,  ^,  302. 

2  Bynkershoek,  De  dom.  maris,  cap.  2 

3  Let.  to  Mr.  Tessara,  Dec.  16,  1862;  Wharton,  ?  32,  p.  102. 


66 

But  the  distance  of  defense  is  still  theoretically  and 
in  many  instances  practically  the  limit  of  the  marginal 
belt. 

The  extremes  between  which  the  pendulum  of  opinion 
on  this  point  has  swung  are  twenty  miles,  the  extent  of 
human  sight,  and  one  sea  league,  the  seventeenth  cen- 
tury cannon-range.  These  are  the  greatest  and  the  least 
distances  which  have  ever  gained  any  respectable  assent 
among  nations.  ^ 

Rayneval  and  certain  old  writers  ^  are  authority  for 
the  proposition  that  the  horizon  limits  the  jurisdiction  of 
a  nation  over  the  bordering  ocean.  This,  and  the  equally 
impracticable  theory  of  Valin  that  the  dominion  of  a  coun- 
try in  the  sea  ceases  only  when  one  can  no  longer  sound 
bottom, 3  may  be  dismissed  as  being  without  foundation — 
either  in  fact  or  reason.  The  bulk  of  authority  firmly 
establishes  the  rule  that  jurisdiction  extends  as  far  as 
guns  will  carry.'^ 

As  already  mentioned,  the  distance  has  been  and 
always  may  be  varied  by  specific  law  or  agreement.  An 
illustration  of  a  precise  limit  thus  fixed  in  excess  of  three 
miles,  is  the  "  Guadalupe-Hidalgo  "  treaty  with  Mexico  of 
Feb.  2d,  1848,  whereby  the  boundaries  of  the  United 
States  and  Mexico  were  placed  at  a  distance  of  three 


1  Let.  Mr.  Jefferson  to  M.  Genet,  Nov.  8,  1793;  Wharton,  ^  32,  p.  100. 

2  Inst.    Liv.    II,    eh.    9,   ^    10;     Spanish    Law    of    1643    cited    in   ch.    2    of 
Bynkershoek. 

3  Wheaton,  p.  256,  note  citing  VaHn,  Comm.  sur  I'Ordonance  de  1681,  liv.  V, 
tit.,  I.;  Woolsey,  g  56,  p.  68. 

4  Wheaton,  p.  255;  Kent  I,  p.  158;  Ortolan  I,  p.  152-158;  Phil.  I,  ^  198; 
Grotius  L.  II,  cap.  3,  ^  13;  Bynkershoek,  De  dom.  maris,  cap.  2;  Vattel,  1.  I.,  ch.  23^ 
§  289;  Kliiber,  ^  130;  Martens  Law  of  Nations,  B.  IV.,  ch.  IV.,  §  10 ;  Pomeroy, 
2  150;   Bluntschli,  Volkerrecht,  Buch  IV,  ?  303  ;  ^  Hautefeuille,  Vol.  I,  p.  57. 


67 

leaofues  from  the  coast/     But  such  an  arransfement  can 
affect  no  other  than  the  contracting  parties.^ 

On  the  other  hand,  the  English  act  of  1833,  and  the 
Act  of  Congress  in  1794,^  have  fixed  the  jurisdictional 
limit  for  Great  Britain  and  the  United  States  at  one  sea 
league  or  three  marine  miles. 

Yet  even  in  these  cases  where  the  sea-league  is  taken 
as  the  limit,  there  are  some  purposes  for  which  the 
distance  of  defense  must  still  be  taken  as  the  limit  of 
jurisdiction.  "The  ground  of  the  rule"  (as  to  maritime 
jurisdiction  of  this  character),  says  Field,  shortly,  "is  the 
margin  of  sea  within  reach  of  the  land  forces  or  from 
which  the  land  can  be  assailed."  "^  No  nation  can  afford 
to  deprive  itself  of  the  power  to  protect  its  shore  against 
marauders  or,  in  case  it  is  a  neutral,  against  belligerent 
cannonade.  France  exercised  this  power  in  1864,  at  the 
time  of  the  sea  duel  between  the  "  Kearsarge  "  and  the 
"Alabama."  "Nor  does  this  reason  apply  exclusively 
to  hostile  operations,"  says  Wharton.  "  We  can  conceive, 
for  instance,  of  a  case  in  which  armed  vessels  of  nations 
with  whom  we  are  at  peace,  might  select  a  spot  within 
cannon-range  of  our  coast  for  the  practice  of  their  guns. 
A  case  of  this  character  took  place  not  long  since,  in  which 
an  object  on  shore  was  selected  as  a  point  at  which  to 
aim,  for  the  purpose  of  practicing,  projectiles  to  be  thrown 
from  the  cruiser  of  a  friendly  power.  Supposing  such  a 
vessel  to  be  four  miles  from  the  coast,  could  it  be  reason- 
ably maintained  that  we  have  no  police  jurisdiction  over 


1  Let.  Mr.  Fish,  Sec.  of  State,  to  Sir  Edward  Thornton,  Jan.  22, 1875  ;  Wharton, 
2  32,  p.  105. 

2  Id.,  citing  Let.  Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Bankhead,  Aug.  19,  1848. 

3  Act  of  June  5,  1794,  ch.  50,  sect.  6,   Laws  of  U.  S.,  Vol.  II,  p.  427. 

4  Field  Int.  Code,  2  Ed.,  g  28. 


68 

such  culpable  negligence?  Or  could  it  be  reasonably 
maintained  that  marauders,  who  at  the  same  time  would 
not  be  technically  pirates,  could  throw  projectiles  upon 
our  shores  without  our  having  jurisdiction  to  bring  them 
to  justice?  The  answer  to  such  questions  may  be  drawn 
from  the  reason  that  sustained  a  claim  for  a  three-mile 
police  belt  of  sea  in  old  times.  This  reason  authorizes 
the  extension  of  this  belt  for  police  purposes  to  nine 
miles,  if  such  be  the  range  of  cannon  at  the  present  day. 
This,  it  should  be  remembered,  does  not  subject  to  our 
domestic  jurisdiction  all  vessels  passing  within  nine  miles 
of  our  shores,  nor  does  it  by  itself  give  us  an  exclusive 
riofht  to  fisheries  within  such  a  limit.  '='  '''  For  the 
latter  purposes,  the  three-mile  limit  is  the  utmost  that 
can  be  claimed."  ' 

2.       THE    HOVERING    ACTS. 

Another  instance  of  the  over-stepping  of  this  sea- 
leaofue  bound  are  the  so-called  "  hoverinor  acts."  Great 
Britain  passed  such  an  act  in  1736;^  the  United  States 
in  1799.^  They  provide  substantially  "for  certain  revenue 
purposes,  a  jurisdiction  of  four  leagues  from  the  coasts, 
by  prohibiting  foreign  goods  to  be  transhipped  within 
that  distance  without  payment  of  duties."  '*  The  United 
States  law  on  the  subject  is  found  at  §  2760  of  the  Re- 
vised Statutes : 

"The  officers  of  the  revenue  cutters  shall  *  *  go 
on   board  all    vessels    which   arrive    within    the    United 


1  Wharton,  ^  32,  p.  114. 

2  9  Geo.  II,  cap.  35,  see  Wharton,  ^  32,  p.  109. 

3  Act  of  March  2d,  I799,  ch.  128,  sect.  99,  Vol.  Ill,  Laws  of  U.  S.,  p.  226. 

4  Wheaton,  |  179. 


69 

States  or  within  four  leagues  of  the  coast  thereof,  if 
bound  for  the  United  States,  and  search  and  examine 
the  same,  and  every  part  thereof,  and  shall  demand, 
receive  and  certify  the  manifests  required  to  be  on 
board  certain  vessels,  shall  affix  and  put  proper  fasten- 
ings on  the  hatches  and  other  communications  with  the 
hold  of  any  vessel,  and  shall  remain  on  board  such 
vessels  until  they  arrive  at  the  port  or  place  of  their  des- 
tination." 

Here  then  is  presented  a  conflict  of  municipal  with 
international  law.  The  analogy  between  it,  and  the  pre- 
sent similar  conflict  in  the  Behring  Sea,  renders  it  pe- 
culiarly important. 

The  real  explanation  of  the  validity  of  such  a  revenue 
regulation  is  found  in  the  language  of  Mr.  Fish, 
while  Secretary  of  State,  1875  :  "Although  the  Act  of 
Congress  was  passed  in  the  infancy  of  this  Government, 
there  is  no  knoivn  instance  of  any  complaint  on  the  part 
of  a  foreign  Government  of  the  trespass  by  a  commander 
of  a  revenue  cutter  upon  the  rights  of  its  flag  under  the 
law  of  nations."  ' 

Is  not  acquiesence  on  the  part  of  other  nations,  then, 
a  condition  precedent  to  the  legality  of  such  an  Act  ? 
And  is  this  not  virtually  a  confession  that  such  a  regulation 
can  be  nothing  more  than  municipal,  and  must  never  be 
allowed  to  trench  upon  the  rights  of  other  nations  ? 
Such  a  view  seems  borne  out  by  an  incident  which  oc- 
curred shortly  after.  Mexican  officials  attacked  United 
States  merchant  vessels,  for  breach  of  the  Mexican  rev- 
enue laws,  at  a  distance  of  more  than  three  miles  from 


I  Let.  to  Sir  Edward  Thornton,  Jan.  22,  i875;  Wharton,  ?  32  p.   105. 


70 

the  shore.  This  was  styled  by  Secretary  Evarts,  an  in- 
ternational offense.  ' 

Phillimore  is  very  positive  in  support  of  this  view  : 

"It  cannot  be  maintained  as  a  sound  proposition  of 
international  law  that  a  seizure  for  purposes  of  enforcing 
municipal  law  can  be  lawfully  made  beyond  the  limits  of 
the  territorial  waters,  though  in  these  hovering  cases 
judgments  have  been  given  in  favor  of  seizures  made 
within  a  limit  fixed  by  municipal  law,  but  exceeding  that 
which  has  been  agreed  upon  by  international  law.  Such 
a  judgment,  however,  could  not  have  been  sustained  if 
the  foreign  States  whose  subjects'  property  had  been 
seized,  had  thought  proper  to  interfere."  ^ 

Dana  says  :  "It  will  not  be  found  that,  in  later 
times,  the  right  to  make  seizures  beyond  such  waters  has 
been  insisted  upon  against  the  remonstrance  of  foreign 
States."  But  he  oroes  still  farther  and  denies  "that  a 
clear  and  unequivocal  judicial  precedent  now  stands  sus- 
taining such  seizures  when  the  question  of  jurisdiction 
has  been  presented."  ^ 

The  explanation  of  such  acquiescence  on  the  part  of 
other  nations  is  that  "the  sovereign  whose  flag  has  been 
violated  waives  his  privilege,  considering  the  offending 
ship  to  have  acted  with  mala  fides  towards  the  other 
State  with  which  he  is  in  amity,  and  to  have  consequently 
forfeited  any  just  claim  to  his  protection."  -^ 

Accordingly,  a  State  executes  these  extra-territorial 
enactments    at    its    "  peril,"    hoping    for    ratification    by 


1  Let.  to  Mr.  Foster,  Apl.   19,  1879;  ^^^larton,  \  32,  p.  106. 

2  I,  \  198. 

3  ^^^leaton,  \  179,  note. 

4  Report  of  Dr.  Twiss  to  the  Sardinian  Gov't,  in  the  Cagliari  case ;  Wharton, 
i  32,  P-   I"-      . 


71 

other  nations  from  "motives  of  comity."  '  For  "it  can- 
not now  be  successfully  maintained  either  that  municipal 
visits  and  search  may  be  made  beyond  the  territorial 
waters,  for  special  purposes,  or  that  there  are  different 
bounds  of  that  territory  for  different  objects.  *  *  In 
later  times  it  is  safe  to  infer  that  judicial  as  well  as  politi- 
cal tribunals  will  insist  on  one  line  of  marine  territorial 
jurisdiction  for  the  exercise  of  force  on  foreign  vessels, 
in  time  of  peace,  for  all  purposes  alike."  ^ 


3.       THE    DOCTRINE    OF    HEADLANDS. 

There  is,  however,  an  open  place  in  all  that  has  thus 
far  been  said  concerning  the  marginal  belt  of  jurisdic- 
tion. Shall  we  say  with  Secretary  Bayard  "  that  the  sea- 
ward boundary  of  this  zone  of  territorial  waters  follows 
the  coast  of  the  mainland,  extending  where  there  are 
islands  so  as  to  place  around  such  islands  the  same  belt. 
This  necessarily  excludes  the  position  that  the  seaward 
boundary  is  to  be  drawn  from  headland  to  headland,  and 
makes  it  follow  closely,  at  a  distance  of  three  miles,  the 
boundary  of  the  shore  of  the  continent  or  of  adjacent 
islands  belonging  to  the  continental  sovereign."  ^ 

Or  shall  we  take  to  be  true  what  Martens  says  on  the 
subject?  "A  fictitious  line  is  usually  drawn  from  one 
promontory  to  another,  and  this  is  taken  as  the  point  of 
departure  for  the  cannon  range  ;  this  practice  also  applies 
to  small  bays,  gulfs  of  a  great  extent  being  assimilated 


1  Wheaton,  §   179,  note. 

2  Wheaton,  p.  260,  note. 

3  Let.  to  Mr.  Manning,  Sec'y  of  Treas.,  May  28,   18S6;  Wharton,  |  32,  p.  107- 


72 

to  the  open  sea."  '  A  doctrine  by  which,  as  Pomeroy 
lucidly  puts  it,  "all  the  rest  of  the  land  is  treated  as 
though  extended  out  as  far  as  these  promontories."  ^ 

In  other  words,  shall  we  accept  or  reject  the  doctrine 
of  "  headlands"? 

When  drawing  up  a  code  of  International  Law  in 
1872  for  general  adoption,  Field  drafted  the  following 
provision  to  cover  this  point : 

"  Where  bays,  straits,  sounds  or  arms  of  the  sea, 
are  enclosed  by  headlands  not  more  than  six  leagues 
apart,  such  limits  extend  three  leagues  outward  from  a 
line  drawn  between  the  two  headlands."  ^ 

Chancellor  Kent  takes  the  following  extreme  posi- 
tion : 

"  Considering  the  great  extent  of  the  line  of  the 
American  coasts,  we  have  a  right  to  claim,  for  fiscal  and 
defensive  regulations,  a  liberal  extension  of  maritime 
jurisdiction  ;  and  it  would  not  be  unreasonable,  as  I  ap- 
prehend, to  assume  for  domestic  purposes  connected 
with  our  safety  and  welfare  the  control  of  waters  on  our 
coasts,  though  included  within  lines  stretching  from  quite 
distant  headlands — as,  for  instance,  from  Cape  Ann  to 
Cape  Cod,  and  from  Nantucket  to  Montauk  Point,  and 
from  that  point  to  the  capes  of  Delaware,  and  from  the 
South  cape  of  Florida  to  the  Mississippi.     *     '■'''     * 

"There  can  be  but  little  doubt  that  as  the  United 
States  advance  in  commerce  and  naval  strength,  our 
Government  will  be  disposed  more  and  more  to  feel  and 
acknowledge  the  justice  and  policy  of  the   British  claim 


1  Martens'    Precis.  Vol.  i,  p.   143 ;    So    Hautefeuille,  Droit    des    Nats.    Neutr., 

I.  P-  59- 

2  Pomeroy.  §  151. 

3  Vol.  I,  §  28. 


73 

to  supremacy,  over  the  narrow  seas  adjacent  to  the 
British  Isles,  because  we  shall  stand  in  need  of  similar 
accommodation  and  means  of  security."  ' 

To  be  sure,  the  context  makes  it  clear  that  the 
learned  Chancellor  had  particularly  in  mind  the  right  to 
investigate  the  nationality  of  an  armed  vessel  hovering 
"  on  our  coasts,"  rather  than  a  proprietary  right  such 
as  that  of  exclusive  fishing.  Yet  it  is  strange  that  Dr. 
Phillimore  should  have  quoted  this  passage  as  indica- 
tive of  American  opinion  on  this  point.^  For  it  has 
been  repeatedly  disclaimed  by  the  highest  American 
authorities.  President  Woolsey  declares:  "But  such 
broad  claims  have  not,  it  is  believed,  been  much  urged, 
and  they  are  out  of  character,  for  a  nation  that  has  ever 
asserted  the  freedom  of  doubtful  waters,  as  well  as  con- 
trary to  the  spirit  of  more  recent  times.  [Moreover, 
the  United  States  in  the  '  headland  question'  during  its 
fishery  disputes  with  Great  Britain,  has  maintained  the 
contrary]."  ^  While  Pomeroy  as  unhesitatingly  asserts  : 
"  From  the  main  propositions  and  doctrines  in  this  ex- 
tract of  Chancellor  Kent,  I,  as  an  American  lawyer  and 
citizen,  must  emphatically  dissent.  =^  *  I  should  add 
that  these  pretensions  on  the  part  of  our  government 
seem  to  have  been  abandoned.""^ 

The  drift  of  modern  opinion  on  this  question  is  indi- 
cated by  the  attitude  of  England.  Immemorially  she  has 
been  committed  to  the  doctrine  of  the  "  King's  Chambers  " 
so  called  ;  that  is,  she  has  extended  her  jurisdiction  on 
her  own  coasts  to  a  line  drawn  from  headland  to  headland, 


1  Commentaries,  Vol.  I,  pp.  30-31. 

2  I,  §  201. 

3  Int.  Law,  ^  60,  p.  77. 

4  Pomeroy,  ^  157. 1 


74 

so  as  to  include  bays  and  river  outlets.'  So  vehement  and 
constant  has  been  the  opposition  to  this  claim  from 
other  nations  that  she  has  hesitated  latterly  to  insist  upon 
it  or  to  extend  it  to  her  colonial  possessions.  In  1839,  ^^^ 
concluded  a  fisheries  treaty  with  France,^  by  the  terms  of 
which  it  was  "equally  agreed  that  the  distance  of  three 
miles  fixed  as  the  general  limit  for  the  exclusive  right  of 
fishing  upon  the  coasts  of  the  two  countries  shall,  with 
respect  to  bays,  the  mouths  of  which  do  not  exceed  ten 
miles  in  width,  be  measured  from  a  straight  line  drawn 
from  headland  to  headland."  ^ 

The  treaty  of  181 8,  between  Great  Britain  and  the 
United.  States,  after  enumerating  certain  limits  of  free 
fishing,  provided  that  "  the  United  States  *  renounce 
forever  any  liberty  heretofore  enjoyed  or  claimed  by  the 
inhabitants  thereof,  to  take,  dry,  or  cure  fish,  on  or  within 
three  marine  leagues  of  the  coasts,  bays,  creeks  or  harbors 
of  his  Britannic  Majesty's  dominions  in  America  not 
included  within  the  above-mentioned  limits."  ^ 

Difificulties  arising  in  1849  as  to  the  construction  of 
this  article,  owing  to  its  alleged  non-observance  by 
United  States  citizens,  the  British  Law  Officers  were 
consulted. 5  They  gave  as  the  true  construction  that 
"  the  prescribed  distance  of  three  miles  is  to  be  measured 
from  the  headlands  or  extreme  points  of  land,  next  the 
sea  or  coast,  or  of  the  entrance  of  bays  or  indents  of  the 
coast,  and  that  consequently  no  right  exists  on  the  part 
of  American  citizens  to  enter  the  bays  of  Nova  Scotia, 


1  Phil.  I,  ^  200;  Woolsey,  §  60,  p.  76. 

2  Wheaton,  p.  260. 

3  Treaty  of  3rd  of  Aug.  at  Taris,  Martens'  N.  R.  XVI.,  pp.  956-7. 

4  Annual  Reg,  Vol.  xciv  (1852),  pp.  295-6. 

5  Phil.  I,  ?  196. 


75 

there  to  take  fish,  although  the  fishing,  being  within  the 
bay,  may  be  at  a  greater  distance  than  three  miles  from 
the  shore  of  the  bay,  as  we  are  of  opinion  that  the  term 
'  headland '  is  used  in  the  treaty  to  express  the  part  of 
the  land  we  have  before  mentioned,  including  the  interior 
of  the  bays  and  the  indents  of  the  coasts."  ' 

Nevertheless,  the  jurisdictional  line  thus  drawn,  must 
be  regarded  as  resting  more  on  the  precise  words  of  the 
treaty,  "  within  three  marine  leagues  of  any  of  the  coasts, 
bays"  &c.,  than  on  any  doctrine  of  headlands.  Besides, 
this  decision  was  given  on  the  supposition  that  the  word 
"headland"  occurred  ^in  the  treaty;  whereas,  as  Sir 
Robert  Phillimore  has  pointed  out,  it  does  not.  He 
accounts  for  this  curious  error  by  saying  that  "the  Law 
Officers  probably  gave  their  opinion  on  a  statement  of 
the  colonists  in  which  the  word  did  occur."  ^  But  the 
essence  of  the  headland  doctrine  is,  that  it  applies  exactly 
there  where  no  mention  is  made  of  headlands  and  no 
precise  method  of  drawing  the  line  of  marginal  jurisdic- 
tion is  provided.  For  these  reasons,  this  interpretation 
put  upon  the  fisheries  treaty  of  1818,  cannot  be  cited  as 
an  instance  of  the  English  headland  doctrine. 

The  rights  under  this  treaty  were  extended  in  1854  ; 
but,  in  1865,  they  were  abrogated  by  the  United  States 
in  the  exercise  of  a  power  reserved  to  it  in  the  treaty. ^ 
On  May  14,  1870,  the  Provincial  Minister  of  Marine 
and  Fisheries,  Mr.  Peter  Mitchell,  re-asserted,  the  head- 
land claim  off"  these  coasts,  now  without  treaty  sanction. 
Lord  Granville,  British  Foreign  Secretary,  instantly  tele- 


1  Ann.  Reg.,  Vol.  xciv  (1852),  pp.  296-7. 

2  I,  §  196,  note. 

3  Phil.  I,  §  196. 


76 

graphed  :  "  Her  Majesty's  Government  hopes  that  the 
United  States  fishermen  will  not  be,  for  the  present,  pre- 
vented from  fishing,  except  within  three  miles  of  land, 
or  in  bays  which  are  less  than  six  miles  broad  at  the 
mouth."  '■ 

The  history  of  the  headland  doctrine,  therefore,  war- 
rants the  conclusion  of  Dr.  Wharton  : 

"It  cannot  be  asserted  as  a  general  rule  that  nations 
have  an  exclusive  right  of  fishery  over  all  adjacent  waters 
to  a  distance  of  three  marine  miles  beyond  an  imaginary 
line  drawn  from  headland  to  headland.  This  doctrine  of 
headlands  is  new,  and  has  receiv,ed  a  proper  limit  in  the 
convention  between  France  and  Great  Britain  on  the  2d 
of  Aug.,  1839."^ 

II.     When  the  Shores  belong  to  more  than  one 

Nation. 

There  is  a  singular  uncertainty  among  the  writers  as 
to  whether  and  how  a  division  of  the  possession  of  the 
shores  amono-  two  or  more  nations  affects  the  close 
character  of  bays,  enclosed  seas  and  straits.  Puffendorf 
declares  sweepingly :  "Quod  si  autem  diversi  populi 
fretum,  aut  sinum  accolant,  eorum  imperia  pro  latitudine 
terrarum  ad  medium  usque  ejusdem  pertinere  intelligen- 
tur."  ^  Twiss'^  and  Phillimore^  repeat  this  statement  of 
Puffendorf  on  his  authority  in  regard    to    straits.     But 


1  Wharton,  §  29,  p.  76. 

2  Digest,  §  29,  p.  76. 

3  L.  IV,  c.  IV,  §  8. 

4  §  174- 

5  I,  ?  189. 


77 

we  have  good  authority  for  thinking  that  the  jurisdiction 
of  a  nation  over  a  strait  of  which  it  owns  but  one 
shore,  does  not  extend  beyond  three  miles  or  cannon- 
shot.^  There  is  certainly  no  reason  why  the  narrow 
marginal  belt  allotted  to  national  ownership  should 
be  any  greater  in  such  a  strait  than  in  the  open 
sea. 

As  to  bays  and  enclosed  seas,  however,  the  view  of 
Puffendorf  is  probably  the  correct  one.  Yet  Dr.  Twiss 
speaks  of  the  Black  Sea  as  being  an  instance  of  a  closed 
sea  "  whilst  its  shores  were  in  the  exclusive  possession 
of  the  Ottoman  Porte."  -  He  thereby  implies  that  the 
exclusive  possession  of  the  Porte  was  the  reason  for  its 
close  character. 

Accordingly,  the  authorities  seem  to  permit  the  con- 
clusion that  when  opposite  shores  of  straits  are  owned 
by  more  than  one  nation,  territorial  jurisdiction  ex- 
tends three  miles  only.  But  when  the  shores  of  bays 
and  enclosed  seas  belong  to  different  countries,  the 
status  of  these  bodies  of  water  is  assimilated  to  that  of 
lakes.  Jurisdiction  extends  to  the  middle  line  ;  but  the 
borderine  countries  and,  when  these  bodies  of  water 
communicate  with  the  open  sea,  all  countries,  have  the 
right  of  free  navigation. ^ 

On  this  point,  Field  proposes  the  following  regula- 
tions : 

"  §  31.  The  limits  of  national  territory,  bounded  by  a 
lake,  or  other  inland  water,  not  being  a  stream,  extend 
outward  to  a  straight  line  drawn  from  the  points  at  which 


1  Pomeroy,  ^139;  Kliiber,  \  130. 

2  \  174- 

3  Bluntschli,  IV,  \\  301,  305  and  306. 


78 

such  territory  touches  the  land  of  other  nations  on  the 
shore,  at  low-water  mark  ;  except  where  such  line  would 
fall  within  less  than  three  marine  leagues  of  the  shore  of 
another  nation." 

"§  32.  Where  the  line  mentioned  in  the  last  article 
would  fall  within  less  than  three  marine  leagues  of  the 
shore  of  another  nation,  at  low-water  mark,  it  must  so 
deflect  as  to  run  that  distance  from  such  shore,  unless 
the  distance  between  the  opposite  shores  is  less  than  six 
marine  leagues,  in  which  case  the  boundary  line  runs 
equidistant  from  the  two  shores."  ' 

I  International  Code. 


79 


CHAPTER  VII. 

The  Behring  Sea  not  within  the  Exceptions  to  the 
Rule  of  Mare  Liberum. 

The  application  of  these  principles  of  international 
law  to  the  Behring  Sea,  permits  but  one  conclusion.  It  is 
a  free  sea.  A  strait  it  obviously  is  not  ;  nor  does  the 
marginal  belt  jurisdiction  include  the  fishing  ground  ot 
the  Canadian  Sealers.  In  the  character  of  an  enclosed 
sea,  it  is  deficient  in  the  necessary  complete  enclosure 
by  land.  For  not  only  is  the  Behring  Strait  36  miles  wide, 
and  the  distance  between  many  of  the  islands  forming 
the  southern  boundary  of  this  sea  far  in  excess  of  that, 
but  the  distance  between  the  last  island  of  the  Aleutian 
chain  and  the  nearest  Russian  island  of  the  Commander 
group  is  183  miles. 

Again,  regarded  as  a  bay  or  gulf,  the  Behring  Sea 
fails  to  enter  the  category  of  closed  seas.  Waiving 
all  physico-geographical  objections  to  such  a  classifica- 
tion, it  still  lacks  two  of  the  essentials  of  such  a  sea,  i.  e. 
defensibility  of  the  entrance  (if  indeed  it  can  be  said  to 
have  any  entrance)  and  possessibility.  At  its  qiiasi 
entrance,  the  navies  of  the  world  might  ride  abreast  and 
yet  be  out  of  each  others'  sight.  The  mere  name  of 
bay  or  gulf  does  not  necessarily  carry  with  it  the  idea 
of  possessibility,  and  International  Law,  when  impor- 
tuned to  accord  such  a  character  to  the  Behring  Sea,  cries 
out  with  Vattel : 

"  Mais  je  parle  des  bales  et  detroits  de  peu  d'eten- 
due,  et  non  de  ces  grand  espaces  de  mer,  auxquels  on 
donne  quelquefois  ces  noms,   tels  que  la  bale  de   Hud- 


80 

son,   le  detroit  de   Magellan,   sur  lesquels  I'empire  ne 
saurait  s'etendre,  et  moins  encore  la  proprlete."  ' 

If  sovereignty  over  the  Behring  Sea  were  its  sole 
ground  of  defense,  the  following  official  criticism  of  its 
course  of  action  by  the  Canadian  Privy  Council  would 
be    unanswerable  by  the  United  States  : 

"It  does  not  appear  necessary  to  insist  at  any  great 
length  that  the  conditions  attaching  to  Alai'ia  clausa  can 
not  by  any  possibility  be  predicated  of  Behring  Sea,  and 
that  the  seizure  of  Canadian  vessels  at  a  distance  of  over 
lOO  miles  from  the  mainland,  and  70  miles  from  the  nearest 
island,  constitutes  a  high-handed  extension  of  maritime 
jurisdiction  unprecedented  in  the  law  of  nations."  ^ 

The  verdict  of  International  Law  so  far  as  the  con- 
troversy involves  a  claim  to  national  marine  jurisdiction, 
is  found  in  the  latest  edition  of  Woolsey's  celebrated 
work  on  International  Law,  published  in  1891. 

"The  recent  controversy  between  Great  Britain  and 
the  United  States  involving  the  right  of  British  subjects 
to  catch  seals  in  North  Pacific  waters,  appears  to  be  an 
attempted  revival  of  these  old  claims  to  jurisdiction  over 
broad  stretches  of  sea.  That  an  international  agreement, 
establishing  a  rational  close  season  for  the  fur  seal  is 
wise  and  necessary,  no  one  will  dispute.  But  to  prevent 
foreigners  from  sealing  on  the  high  seas,  or  within 
Kamschatkan  Sea  (which  is  not  even  enclosed  by 
American  territory,  its  west  and  northwest  shores  being 
Russian),  is  as  unwarranted  as  if  England  should  warn 
fishermen  of  other  nationalities  off  the  Newfoundland 
Banks."3 


1  Vattel,  L.  I,  Ch.  XXIII,  ?  291. 

2  No.  117,  Report  approved  by  Gov.  Gen.,  29  Nov.,  1886. 

3  \  59,  P-  73- 


81 


CHAPTER  VIII. 

Mare  Liberum  in  American  History. 

Before  quitting  this  branch  of  the  subject,  American 
history  should  be  searched  to  find  how  far  the  United 
States  has  committed  itself  to  the  principles  just  laid 
down  and  in  what  application.  Old  world  precedents 
weii^di  lightly  with  a  certain  class  of  Americans  ;  the 
reply  being,  that  it  is  the  part  of  a  progressive  country, 
like  the  United  States,  to  break  loose  from  the  chains  of 
old  world  ideas  and  to  set  the  fashion  for  the  world.  A 
precedent  is  never  a  parallel ;  at  best  it  argues  by 
analogy.  The  precedent  most  directly  in  point  is  but 
an  approximate  parallel.  But  while  the  precedent  set  by 
another  nation  may  be  lighdy  distinguished  and  so 
disregarded,  the  precedent  out  of  its  own  history  will 
be  cogent  upon  a  country  on  pain  of  self-stultification. 
The  ghost  of  its  national  past  will  not  down  from 
troubling  the  repose  of  the  United  States,  so  long  as 
it  preaches  or  practices  any  different  doctrine  of  the 
high  seas  than  national  "hands  off." 

When,  in  1855,  the  United  States  was  invited  to  par- 
tici|)ate  in  the  European  Conference  to  adjust  the  gross 
sums  which  should  be  paid  to  Denmark  for  the  right  of 
passage  through  the  Sound  and  the  two  Belts,  President 
Pierce  declined  to  have  anything  to  do  with  such  pay- 
ment "because,"  said  he,  "  it  is  in  effect  the  recogrnition 
of  the  right  of  Denmark  to  treat  one  of  the  great 
maritime  highways  of  nations  as  a  close  sea,  and  prevent 
the  navigation  of  it  as  a  privilege,  for  which  tribute  may 
be  imposed  upon  those  who  have  occasion  to  use  it."  ' 

I  Pierce's  3d  Annual  Message,  1855  ;  Wharton,  §  29,  p.  77. 


82 

In  1862,  when  Spain  insolently  pushed  her  claim  to 
an  extended  jurisdiction  around  the  Island  of  Cuba, 
Secretary  Seward's  forcible  response  was : 

"  It  cannot  be  admitted,  nor,  indeed,  is  Mr.  Tessara 
understood  to  claim,  that  the  mere  assertion  of  a 
sovereign,  by  an  act  of  legislation,  however  solemn,  can 
have  the  effect  to  establish  and  fix  its  external  maritime 
jurisdiction.  '''  '"'  '''  He  cannot,  by  a  mere  decree, 
extend  the  limit  and  fix  it  at  six  miles,  because,  if  he 
could,  he  could  in  the  same  manner,  and  upon  motives 
of  interest,  ambition  or  even  upon  caprice,  fix  it  at  ten, 
or  twenty,  or  fifty  miles,  without  the  consent  or  acqui- 
escence of  other  powers  which  have  a  common  right  with 
himself  in  the  freedom  of  all  the  oceans.  Such  a  pre- 
tension could  never  be  successfully  or  rightfully  main- 
tained."' 

This  language  is  peculiarly  applicable  to  the  Behring 
Sea  claims  of  the  United  States,  because,  unless  we  con- 
cede that  they  were  derived  from  Russia,  they  rest  solely 
on  an  act  of  Municipal  Law. 

In  1 87 1,  the  Secretary  of  State,  Mr.  Fish  wrote  to  the 
American  Minister  at  Constantinople:  "This  Govern- 
ment is  not  disposed  to  prematurely  raise  any  question  to 
disturb  the  existing  control  which  Turkey  claims  over  the 
straits  leadinof  into  the  Euxine.  *  *  But  while  this 
Government  does  not  deny  the  existence  of  the  usage 
*  *  the  President  deems  it  important  to  avoid  recog- 
nizing it  as  a  right  under  the  laws  of  nations."^ 

This  same  view  with  regard  to  sovereignty  over  a 
strait  finds  more  determined  expression  in  a  letter  irom 


1  Let.  to  Mr.  'I'essara,  Au^.  10,  1863  ;   Whmton,  ^  32,  ]i. 

2  Let.  to  Mr.  MacVeagli,  May  5  ;  Wharton,  ^  2<j,  p.  79. 


\ 


83 

Mr.  Evarts,  Secretary  of  State  in  1879:  "The  Govern- 
ment of  the  United  States  will  not  tolerate  exclusive 
claims  by  any  nation  v^^hatsoever  to  the  Strait  of  Magellan, 
and  u^ill  hold  responsible  any  Government  that  under- 
takes, no  matter  on  what  pretext,  to  lay  any  impost  or 
check  on  the  United  States  commerce  throucrh  those 
straits."' 

In  1875,  a  question  arising  as  to  Russia's  authority 
to  grant  licenses  for  the  use  of  her  contiguous  seas,  Mr. 
Fish  yet  more  pointedly  said : 

"There  was  reason  to  hope  that  the  practice  which 
formerly  prevailed  with  powerful  nations,  of  regarding 
seas  and  bays,  usually  of  large  extent,  near  their  coast, 
as  closed  to  any  foreign  commerce  or  fishery  not  spec- 
ially licensed  by  them,  was,  without  exception,  a  preten- 
sion of  the  past  and  that  no  nation  would  claim  exemp- 
tion from  the  general  rule  of  public  law  which  limits  its 
maritime  jurisdiction  to  a  marine  league  from  its  coast. 
We  should  particularly  regret  if  Russia  should  insist  on 
any  such  pretension."  ^ 

And  finally,  the  latest  official  word  on  this  matter. 
In  1886,  warning  was  given  by  the  Canadian  authorities 
to  American  fishermen  not  to  carry  on  their  occupation 
within  the  waters  of  the  Bay  of  Chaleurs,  a  bay  which 
measures  about  eighteen  miles  at  its  mouth.  In  a  dis- 
patch of  June  14th,  Secretary  Bayard  stigmatized  such 
action  as  a  "wholly  unwarranted  pretension  of  extra- 
territorial authority "  and  an  "  interference  with  the 
unquestionable  rights  of  the  American  fishermen  to  pur- 


1  Let.  Mr.  Evarts  to  Mr.  Osborn,  Jan.  i8,  1879;  Wharton,  ^  29,  p.  80. 

2  Let.   Mr.   Fish,   Sec.  of   State,  to    Mr.  Boker,  Dec.  I,  1875;   Wharton,  J  32 
p.   106. 


84 

sue  their  business  without  molestation  at  any  point  not 
within  3  marine  miles  of  the  shore."  ' 

"  It  is,"  to  use  Lord  Landsdowne's  comment,  "worth 
while  to  contrast"  these  indignant  remonstrances  of 
Secretary  Bayard  with  "the  claims  now  urged  by  the 
Government  of  the  United  States  to  exclusive  control 
over  a  part  of  the  Pacific  Ocean,  the  distance  between 
the  shores  of  which  is,  as  was  pointed  out  by  Mr. 
Adams,  in  1822,  not  less  than  4,000  miles."  ^  "What," 
queried  a  newspaper,  "would  be  said  if  the  British  un- 
dertook to  prevent  an  American  whaler  from  entering 
Hudson  Bay,  or  traversing  the  western  half  of  that  arm 
of  the  Atlantic  Ocean  which  leads  to  it  ?  Maritime  law 
and  international  are  the  same,  whether  on  the  Atlantic 
or  the  Pacific,  and  there  is  certainly  something  grotesque 
in  the  siofht  of  hundreds  of  American  fishermen  hover- 
ing  on  the  Canadian  Atlantic  coast  just  beyond  the 
3-mile  limit,  and  claiming  to  enter  all  bays  more  than 
3  miles  wide  at  the  mouth,  and  fish,  while  on  the  Pacific 
Canadian  vessels  are  captured  300  miles  from  the  main- 
land, and  the  claim  is  made  that  a  bay  more  than  1,000 
miles  wide  at  the  mouth  shall  be  a  closed  sea  to  them."  ^ 


1  No.  117.     Let.  of  Lord  Lansdowne  to  Mr.  Stanhope,  Nov.  29,  18S6. 

2  Id. 

3  Brooklyn  Eagle. 


CHAPTER  IX. 

The  International  Police  Power  Conferred  by  the 
Exigencies  of  Pelagic  Sealing,  and  its  Inter- 
locutory Exercise  by  the  United  States. 

"  Much  learning  has  been  expended  upon  the  discus- 
sion of  the  abstract  question  of  the  right  of  7nare 
clausuin.  I  do  not  conceive  it  to  be  apphcable  to  the 
present  case. 

"  Here  is  a  valuable  fishery,  and  a  large  and,  if  prop- 
erly managed,  permanent  industry,  the  property  of  the 
nations  on  whose  shores  it  is  carried  on.  It  is  proposed 
by  the  colony  of  a  foreign  nation,  in  defiance  of  the  joint 
remonstrance  of  all  the  countries  interested,  to  destroy 
this  business  by  the  indiscriminate  slaughter  and  exter- 
mination of  the  animals  in  question,  in  the  open  neigh- 
boring sea,  during  the  period  of  gestation,  when  the 
common  dictates  of  humanity  ought  to  protect  them, 
were  there  no  interest  at  all  involved.  And  it  is  sug- 
gested that  we  are  prevented  from  defending  ourselves 
against  such  depredations  because  the  sea  at  a  certain 
distance  from  the  coast  is  free. 

"The  same  line  of  argument  would  take  under  its 
protection  piracy  and  the  slave  trade  when  prosecuted 
in  the  open  sea,  or  would  justify  one  nation  in  destroy- 
ing the  commerce  of  another  by  placing  dangerous 
obstructions  and  derelicts  in  the  open  sea  near  its  coasts. 
There  are  many  things  that  cannot  be  allowed  to  be 
done  on  the  open  sea  with  impunity,  and  against  which 
every  sea  is  mare  claiisiim  ;  and  the  right  of  self-defense 
as  to  person  and  property  prevails  there  as  fully  as  else- 


S6 

where.  If  the  fish  upon  the  Canadian  coasts  could  be 
destroyed  by  scattering  poison  in  the  open  sea  adjacent 
with  some  small  profit  to  those  engaged  in  it,  would 
Canada,  upon  the  just  principles  of  international  law,  be 
held  defenseless  in  such  a  case  ?  Yet  that  process  would 
be  no  more  destructive,  inhuman,  and  wanton  than  this. 

"  If  precedents  are  wanting  for  a  defense  so  necessary 
and  so  proper,  it  is  because  precedents  for  such  a  course 
of  conduct  are  likewise  unknown.  The  best  international 
law  has  arisen  from  precedents  that  have  been  established 
when  the  just  occasion  for  them  arose,  undeterred  by  the 
discussion  of  abstract  and  inadequate  rules."  ' 

Much  pent-up  feeling  will  find  outlet  in  these  forcible 
words  of  Mr.  Phelps,  late  United  States  Minister  to 
England,  in  which,  Mr.  Blaine  informs  the  British  Gov- 
ernment, the  President  "finds  his  own  views  well 
expressed."  ^ 

The  argument  as  to  piracy  and  the  slave  trade,  which 
had  found  previous  expression  in  Secretary  Blaine's 
letters,  ^  seems  to  us  fitly  answered  by  Lord  Salisbury : 

"  The  pursuit  of  seals  in  the  open  sea,  under  what- 
ever circumstances,  has  never  hitherto  been  considered 
as  piracy  by  any  civilized  state.  Nor,  even  if  the  United 
States  had  gone  so  far  as  to  make  the  killing  of  fur-seals 
piracy  by  their  municipal  law,  would  this  have  justified 
them  in  punishing  offenses  against  such  law  committed 
by  any  persons  other  than  their  own  citizens  outside  the 
territorial  jurisdiction  of  the  United  States. 


1  Let.,  Mr.  Phelps  to  Mr.  Bayard,  Sept.  12,  1888,  quoted  in    Mr.   Blaine's  letter 
to  Sir  Julian  Pauncefote,  Dec.  17,  1890,-1891. 

2  Let.  of  Mr.  Blaine  last  referred  to. 

3  Let.  to  Sir  Julian  Pauncefote,  Jan.  22,  1890,-No.  9,  1890. 


I 


87 

"In  the  case  of  the  slave  trade,  a  practice  which  the 
civilized  world  has  agreed  to  look  upon  with  abhorrence, 
the  right  of  arresting  the  vessels  of  another  country  is 
exercised  only  by  special  international  agreement,  *  *"  ^ 

The  analogy  drawn  between  seal  poaching  and  the 
wanton  scattering  of  poison  among  the  fish  of  the  Can- 
adian coast  of  the  use  of  dynamite,  seems  to  us  to  ob- 
literate the  distinction  between  use  and  abuse.  The 
time-honored  legal  maxim,  sic  2itere  tuo  ut  alien^mi  non 
Icsdas,  allows  my  neighbor  to  build  his  house  so  high  as 
to  shut  out  my  view,  but  forbids  him  to  dig  so  that  my 
land  caves  in. 

But  Mr.  Phelps'  strong  plea  for  the  actual  safety  of 
the  Behring  Sea  seal  fishery  demands  attention.  The 
exigencies  of  that  fishery  make  out  a  strong  case  for 
international  protection  and  for  single  nation  inter- 
ference in  its  behalf.  Although  the  precise  damage 
inflicted  upon  the  seal  industry  by  deep  sea  fishing  is  a 
matter  of  dispute  between  the  two  Governments,^  and 
Great  Britain  is  unwilling  to  acknowledge  that  any  restric- 
tions upon  it  are  necessary,  ^  yet  the  following  facts  seem 
to  be  sufficiently  vouched  for  by  experts  to  justify  the 
United  States  in  relying  and  acting  upon  them. 

Connecting  Behrino;  Sea  with  the  Pacific  Ocean  are 
the  passes  which  separate  the  islands  of  the  Aleutian 
chain.  Through  these,  in  the  late  spring,  draw  the  re- 
turning hordes  of  the  fur  seal  after  their  wintering  in  the 
warmer  waters  of  the   Pacific.      "The  convergence  and 


1  Let.  Salisbury-Pauncefote,  May  22,  iSgo.-No.  14,  1890. 

2  Lets.  Blaine-Pauncefote,  March  i,  1890;  Pauncefote-Blaine,  Match  9,  189O; 
and  Pauncefote-Blaine,  April  (received  the  30th,)  1890.  Nos.  11,12  and  13,  1890, 
with  enclosures. 

3  Let.  Pauncefote-Blaine,  April  (30th,")  1S90,  No.  13,  1890. 


divergence  of  these  watery  paths  of  the  fur  seal  to  and 
from  the  Seal  Islands  resembles  the  spread  of  the  spokes 
of  a  half  wheel — the  Aleutian  chain  forms  the  felloe, 
while  the  hub  into  which  these  spokes  enter  is  the  small 
Pribyloff  group.  '  So  that  upon  the  Seal  Islands  of  the 
Pribyloff  group,  St.  George  and  St.  Paul,  is  cast  nearly 
the  whole  mass  of  these  returningr  fur  seal  millions. 
Here  then  are  their  natural  rookeries. 

In  these  islands  the  fur  seal  is  obliged  annually  to  haul 
out  for  the  purpose  of  breeding  and  shedding  its  pelage. 
The  male  seals  or  bulls  require  little  food  during  the  five 
or  six  summer  months,  sustaining  existence  on  the  blub- 
ber secreted  beneath  their  skin.  They,  therefore,  remain 
ashore  watching  the  rookeries.  Thus  the  greater  part 
of  the  seals  found  during  the  summer  at  any  distance 
from  the  islands  are  females  in  search  of  food  for  them- 
selves and  their  young. 

Great  discrimination  is  exercised  and  enforced  by  the 
Alaska  Company  in  the  killing  of  these  seals.  Only  the 
young  bulls  are  permitted  to  be  slain  ;  they  are  driven 
inland  from  the  sandy  parts  of  the  islands  whither  the 
old  bulls  have  driven  them,  and  clubbed  in  order  that 
their  skins  may  not  be  perforated. 

On  the  contrary,  if  these  seals  are  hunted  in  the  sea, 
not  only  is  discrimination  impossible,  but  nearly  one  out 
of  every  three  so  slaughtered,  sinks  and  is  lost.  Besides, 
as  we  have  said,  only  females  frequent  these  seas  at  this 
season,- 

We  need  not  point  out  the  utter  ruin  which  thus  threat- 
ens this  valuable   industry.      Anywhere   from  3  to   100 

1  No.  76.  Report  of  Hon.  Henry  W.  Elliott  of  the  Smithsonian  Institute  to  Mr. 
Bayard,  Dec.  3,  1887. 

2  Mr.  Elliott's  Report. 


89 

miles  south  ot  the  Seal  Islands,  the  pelagic  sealer  "has  a 
safe  and  fine  location  from  which  to  shoot,  to  spear,  and 
to  net  these  fur-bearing  amphibians,  and  where  he  can 
work  the  most  complete  ruin  in  a  very  short  time." 
Continues  Mr.  Elliott,  "with  gill  nets,  under  run  by  a 
fleet  of  sealers  in  Behring  Sea,  across  these  converging 
paths  of  the  fur  seal,  anywhere  from  3  to  100  miles 
southerly  from  the  Seal  Islands,  I  am  extremely  moderate 
in  saying  that  such  a  fleet  could  and  would  utterly  ruin, 
the  fur  seal  rookeries  of  the  Pribyloff  Islands  in  less  time 
than  three  or  four  short  seasons.  *  *  *  Open  these 
waters  of  Behring  Sea  to  unchecked  pelagic  sealing,  then 
a  fleet  of  hundreds  of  vessels — steamers,  ships,  schooners 
and  what  not — would  immediately  venture  into  them  bent 
upon  the  most  vigorous  and  indiscriminate  slaughter  of 
these  animals.  A  few  seasons  then  of  the  ereediest 
rapine,  then  nothing  left  of  those  wonderful  and  valuable 
interests  of  the  public  which  are  now  so  handsomely 
embodied  on  the  Seal  Island." 

The  great  need  of  immediate  regulation  is  apparent. 
The  history  of  seal  fisheries  in  other  parts  of  the  world 
ought  to  serve  as  a  warning.  Whereas,  formerly  hun- 
dreds of  thousands  of  seals  were  annually  taken  off  the 
coasts  of  Chili,  the  South  Pacific  Islands,  Southern  Africa, 
and  the  Falkland  Islands,  through  indiscriminate  slaugh- 
ter, the  whole  annual  catch  in  those  localities  has  now 
been  reduced  to  a  few  thousand.  In  some  places  it  has 
led  to  the  entire  destruction  of  the  rookeries.  So  that 
out  of  192,000,  which  is  the  average  yield  of  the  fur 
seal  fisheries  of  the  world  since  1880,  136,000  or  nearly 
three-quarters  are  captured  on  the  islands  of  the  Pribyloff 
and  Commander  groups  ;  and  25,000  more  are  taken 
out  of  the  adjacent  waters  by  the  British  and  American 


90 

sealing  fleets.  Mr.  A.  Howard  Clark,  who  furnished 
the  statistics  for  the  article  on  Seal  Fisheries  in  the 
Encyclopaedia  Britannica,  says  : 

"  There  can  be  no  question  concerning  the  advisabil- 
ity of  regulating  the  number  of  animals  to  be  killed  and 
the  selection  of  such  animals  as  will  not  interfere  with 
the  breeding  of  the  species."' 

While  such  a  partisan  authority  as  the  Inspector  of 
Fisheries  for  British  Columbia  reports  that  a  repetition 
of  the  enormous  catch  in  1886-7  of  40,000  to  50,000  fur 
seals  by  schooners  from  San  Francisco  and  Victoria, 
"with  the  increase  which  will  take  place  when  the  vessels 
fitting  up  every  year  are  ready,  will  soon  deplete  our  fur 
seal  fishery,  and  it  is  a  great  pity  that  such  a  valuable 
industry  could  not  in  some  way  be  protected."^ 

Now  the  exigencies  of  a  fishery  might  suggest  the 
right  of  a  nation  to  interfere  with  the  acts  of  other 
nations  beyond  its  boundaries  on  two  theories.  First, 
this  rio-ht  miofht  be  asserted  as  an  attribute  of  owner- 
ship  of  the  fishery.  Second,  it  might  be  asserted  as  the 
international  privilege  and  duty  of  the  nearest  and  most 
interested  nation. 

Mr.  Lothrop,  while  United  States  Minister  to  Russia, 
communicated  to  his  Government  a  plausible  theory  of 
ownership,  which  he  had  heard  applied  in  Russia  to  the 
fisheries  off  the  coasts  of  northeastern  Asia  : 

"The  seal  fishery  on  our  Behring  coasts  is  the  only 
resource  our  people  there  have  ;  it  furnishes  them  all 
the  necessaries  of  life  ;  without  it  they  perish.  Now  in- 
ternational   law    concedes    to    every    people   exclusive 


1  No.  76.  Review  of  the  fur  seal  fisheries  of  the  world  in  1887. 

2  Report  of  Thomas  Mowat. 


I 


91 

jurisdiction  over  a  zone  along-  its  coast,  sufficient  for  its 
protection  ;  and  the  doctrine  of  the  equal  rights  of  all 
nations,  on  the  high  seas,  rests  on  the  idea  that  it  is 
consistent  with  the  common  welfare,  and  not  destructive 
of  any  essential  rights  of  the  inhabitants  of  the  neigh- 
boring coasts.  Such  common  rights,  under  public  law, 
rest  on  general  consent,  and  it  would  be  absurd  to  affirm 
that  such  consent  had  been  given,  where  its  necessary  re- 
sult would  be  the  absolute  destruction  of  one  or  more 
of  the  parties.  Hence,  the  rule  cannot  be  applied 
blindly  to  an  unforseen  case,  and  these  alleged  common 
rights  must  rightfully  be  limited  to  cases  where  they  may 
be  exercised  consistently  with  the  welfare  of  all.  Behr- 
ing  Sea  partakes  largely  of  the  character  of  an  enclosed 
sea  ;  two  great  nations  own  and  control  all  its  enclosing 
shores.  It  possesses  a  peculiar  fishery,  which,  with 
reference  to  its  preservation,  can  only  be  legitimately 
pursued  on  land,  and  even  there  only  under  strict  regu- 
lations. To  allow  Its  understrained  pursuit  in  the  open 
waters  of  the  sea  is  not  only  to  doom  it  to  annihilation, 
but,  by  necessary  consequence,  to  destroy  all  its  coast 
inhabitants.  If  this  result  is  conceded,  it  follows  that 
the  doctrine  of  common  rights  can  have  no  application 
to  such  a  case."  ' 

But  as  Mr.  Angell""  says  of  this  reasoning:  "We 
can  hardly  assert  with  much  plausibility  that  the  mem- 
bers of  the  Alaskan  Commercial  Company,  which  has 
the  monopoly  of  seal-catching  on,  and  near,  the  Pribyloff 
Islands,  can  plead,  in  fo7^ma  paicperis,  for  protection  on 
grounds  of  charity."    The  extinction  which  indiscriminate 

1  No.  103.     Let.  to  Mr.  Bayard,  Dec.  8,  18S7. 

2  President  of  the  University  of  Michigan.  Fofum,  Nov.,  1889.  "  American 
Rights  in  Behring  Sea." 


92 

capture  of  the  fur  seal  threatens  "deplorable  as  it  may 
be.  would  furnish  a  most  flimsy  excuse  to  a  Govern- 
ment whose  regulations  of  the  industry  in  Alaskan 
waters  is  prompted  not  by  philanthrophy,  but  by  strictly 
mercenary  consideration."  ' 

Vattel  speaks  thus  of  national  appropriation  of 
neighboring  fisheries : 

"The  various  uses  of  the  sea  near  the  coasts  render 
it  very  susceptible  of  property.  It  furnishes  fish,  shells, 
pearls,  amber,  &c.  Now,  in  all  respects  its  use  is  not 
inexhaustible  ;  wherefore,  the  nation  to  which  the  coasts 
belong,  may  appropriate  to  itself  an  advantage  which 
nature  has  so  placed  within  its  reach,  as  to  enable  it 
conveniently  to  make  itself  master  of  it  and  to  turn  it 
to  profit,  in  the  same  manner  as  it  has  been  able  to 
occupy  the  dominion  of  the  land  which  it  inhabits.  Who 
can  doubt  that  the  pearl  fisheries  of  Bahrem  and  Ceylon 
may  lawfully  become  property  ?  And  though  where  the 
catching  of  (swimming)  fish  is  the  object,  the  fishery 
appears  less  liable  to  be  exhausted,  yet,  if  a  nation  has 
on  its  coast  a  particular  fishery  of  a  profitable  nature, 
and  of  which  it  may  render  itself  master,  shall  it  not  be 
permitted  to  appropriate  to  itself  that  natural  benefit,  as 
as  an  appendage  to  the  country  which  it  possesses  *  '•'  ?"  ^ 

Dr.  Twiss  not  only  quotes  the  above  with  approval, 
but  declares  that  the  right  of  fishery  "comes  under 
different  considerations  of  law  from  the  right  of  navi- 
gation." For,  says  he:  "The  7csus  of  all  parts  of 
the  open  sea  in  respect  of  navigation  is  common  to 
all  nations,  but  \\\^  fructus  is  distinguishable  in  law  from 


1  Victoria,  B.  C,  paper. 

2  Droit  des  Gens,  t.  I,  1.  I,  c.  XXTII,  ?  287. 


93 

the  21SUS,  and  in  respect  of  fish,  or  zoophites,  or  fossil 
substances,  may  belong  in  certain  parts  exclusively  to  an 
individual  nation."' 

What  he  means,  however,  by  "certain  parts"  of  the 
sea,  turns  out  to  be  something  very  conventional.  "The 
practice  of  nations,"  adds  he,  "  has  sanctioned  the  exclu- 
sive right  of  every  nation  to  the  fisheries." — Where? 
"  In  the  waters  adjacent  to  its  coasts  to  within  the  limits  of 
its  maritime  jurisdiction."  ^ 

Twiss,  therefore,  neither  himself  contends  nor  con- 
strues Vattel  to  mean  that  a  nation  may  take  into  its 
possession  a  fishery  lying  beyond  the  ordinary  territorial 
jurisdiction. 

If,  on  the  other  hand.  Vattel  in  spite  of  his  limiting 
words  "on  its  coast"  intended  such  extra-marginal 
fisheries,  his  reasoning  had  weight  only  so  long  as  the 
inexhaustible  nature  of  the  sea  was  urged  as  an  argument 
for  its  freedom.  This,  as  we  have  already  shown,  is  no 
longer  done  by  the  best  jurists,^  and  I  will  add  one  more 
illustration  in  the  words  of  Calvo: 

"  Au  point  de  vue  pratique,  celui  de  la  peche,  par 
exemple,  I'argument  tire  de  la  pretendue  immensite  des 
mers  n'a  qu'une  valeur  relative,  et  conduirait,  contraire- 
ment  a  la  pensee  de  ceux  qui  le  mettent  en  avant,  a 
soutenir  que  I'ocean  est  susceptible  d'appropriation  dans 
certains  cas  et  qu'il  ne  Test  pas  dans  d'autres,  qu'il  peut 
a  la  fois,  constituer  un  domaine  collectif  ou  national  et 
une  propriete  individuelle.""^ 


1  Twiss,    1 182. 

2  Id.  and  Wheaton,  Part  II,  Cli.  4,  I  5,  citing  Azuni,  t.  I,  c.  II,  art.  8. 

3  Wheaton,  p.  269. 

4  Vol.  I,  I  205. 


94 

But,  further,  Vattel  is  in  perfect  accord  with  the 
authorities  on  the  subject  in  maintaining  that  the  distance 
of  defence  hmits  the  marine  jurisdiction  of  nations.  ' 
In  this  fact  may  be  found  all-sufficient  proof  that  he 
never  intended  by  his  words  above-quoted  to  uphold  the 
national  possession  of  a  fishery  beyond  that  limit. 

The  distinct  refusal  of  International  Law  to  sanction 
the  extension  of  national  domain  over  a  neighboring 
fishery  cannot  be  more  convincingly  stated  than  on  the 
authority  of  Bluntschli : 

"  The  rich  treasures  of  the  sea  are  open  to  all 
humanity."  ^ 

Or  on  the  more  explicit  authority  of  Calvo  : 

"  Un  interet  maritime  de  premier  ordre,  1' exploitation 
des  peches  cotieres  et  des  bancs  d'hmtre  ou  d'autres 
coquillages,  a  dans  certains  parages  maritimes  fait 
etendre  an  dela  de  la  zone  de  3  milles  le  rayon  de  la 
mer  dite  territoriale.  De  pareilles  derogations  aux 
principes  universellement  reconnus  doivent  strictement 
se  renfermer  clans  la  limite  de  I'objet  special  qui  les  a 
fait  adopter ;  elles  out  besoin  d'ailleurs  pour  devenir 
obligatoires  d'etre  sanctionnees  par  des  conventions 
expresses  et  ecrites."  ^ 

If  the  United  States  is  devoid  of  right  to  regulate  seal 
fishing  in  Behring  Sea  beyond  its  jurisdictional  limit  on 
the  ground  of  ownership  of  the  extra-territorial  fishery, 
still  less  does  it  possess  such  right  by  virtue  of  any 
ownership  in  the  seal  itself.  We  do  not  understand 
whether  any  such  ground  is  actually  relied  upon  by  the 


1  L.  I,  C.  23,  §  289  ;   see  above. 

2  Buch  IV,  §  307. 

3  ?  201. 


95 

United  States  Government.  '  But  we  think  that  Lord 
Salisbury's  statement  of  the  law  on  that  point,  will  meet 
with  little  opposition  from  those  who  are  familiar  with 
the  qualifications  of  animals  feres  natures  at  common 
law  : 

"  Fur  seals  are  indisputably  animals  ferce  natures, 
and  these  have  universally  been  regarded  by  jurists  as 
res  7nillius  until  they  are  caught ;  no  person,  therefore, 
can  have  property  in  them  until  he  has  actually  reduced 
them  into  possession  by  capture."  ^ 

The  claim  of  Canada  to  wild  ducks  hatched  in  her 
territory  after  the  birds  had  passed  her  boundary,  would 
be  as  valid,  says  President  AngelM  as  the  claim  of 
ownership  of  seals,  simply  by  reason  of  their  short 
sojourn  or  even  birth  upon  the  Pribylofif  Islands.  To 
follow  them  into  the  broad  Pacific  with  the  claim  to  the 
ownership,  is  unsupported  by  law.  But  to  meet  them  in 
the  Aleutian  Straits  with  the  same  claim,  is  unsupported 
by  both  law  and  fact.  For  where  is  the  oracle  which  can 
declare  of  any  one  seal  out  of  the  migrating  herd  that  it 
had  ever  before  visited  the  Pribylofi  Islands,  and  did  not 
rather  hail  from  either  Copper  or  Behring  Island  of  the 
Commander  group. '^  If  birth  or  sojourn  upon  the  Priby- 
loff  Islands  constitutes  seals  United  States  property,  birth 
or  sojourn  upon  the  Commander  Islands  constitutes  them 
Russian  property;  and  the  reductio  ad  absurdum  of  the 
argument  of  seal  ownership,  would  be  the  United  States 
prohibiting  Canadians  from  killing  seals  because  they 
were  Russian  property. 

1  Let.  Blaine-Pauncefote,  April  14,  1891 ;  published  May  8,  l89i. 

2  Let.  Salisbury-Pauncefote,  May  22,  1890  :   No.  14,  1890. 

3  Forum,  st/pra. 

4  "  American  Rights  in  Behring  Sea,"  supra. 


96 

But,  on  the  other  hand,  to  protect  a  neighboring 
extra-territorial  fishery  in  the  name  and  for  the  sake  of 
the  world  interest  involved,  rests  on  an  entirely  different 
claim  of  right.  In  such  an  act,  there  is  no  trace  left  of 
national  pretension  ;  it  concedes  to  the  civilized  nations 
of  the  globe,  common  ownership.  The  protection  of 
such  a  fishery  is  an  international  duty  ;  its  regulation  an 
international  task.  To  be  sure,  that  duty  should  be 
assumed  by  an  international  conference,  and  that  task 
performed  by  the  concerted  action  of  nations.  But  before 
such  a  regular  administration  of  international  justice 
could  be  felt,  much  time  must  elapse,  and  during  this 
interval  irreparable  damage  might  be  inflicted.  Here, 
as  in  the  protection  of  all  rights  and  the  prevention  of  all 
wrongs,  a  more  immediate  remedy  is  indispensable.  In 
municipal  law,  the  danger  is  averted  by  the  interlocutory 
injunction.  Such  a  remedy  then  there  must  needs  be 
for  the  perfect  preservation  of  public  rights  in  Inter- 
national Law.  The  procedure  in  the  case  of  the  inter- 
national interlocutory  injunction  must  comply  with  the 
necessities  of  the  situation.  There  is  no  permanent  inter- 
national tribunal  to  which  an  immediate  application  may 
be  made.  Therefore  the  event  must  justify  the  act;  an 
appropriate  international  convention  must  subsequently 
ratify  the  infliction  of  the  temporary  injunction,  or  else 
in  close  analogy  to  municipal  law,  impose  upon  the  nation 
administering  such  unwarranted  remedy  the  payment  of 
damages  for  the  consequences  of  its  rash  act. 

This  temporary  injunction  will  always  be  executed  by 
the  nation  or  nations  most  interested  in  the  prevention 
of  the  wrong  or  most  seriously  injured  by  its  contin- 
uance. 

Does  pelagic  sealing  in  the  Behring  Sea  present  a 


97 

proper  case  for  such  an  international  interlocutory  in- 
junction ;  and  is  the  United  States  authorized  to  inter- 
vene and  has  it  in  fact  intervened  to  prevent  the  destruc- 
tion of  the  Seal  species  as  an  international  agent  ? 
Assuredly,  yes.  Seal  fishing,  and  by  reason  of  its  almost 
sole  survivorship,  particularly  the  Behring  Sea  seal  fish- 
ery, is  a  world  interest ;  not  only  are  all  nations  indirectly 
profited  by  its  preservation,  but  England  directly.  "The 
entire  business  was  *  conducted  peacefully,  lawfully, 
and  profitably — profitably  to  the  United  States,  for  the 
rental  was  yielding  a  moderate  interest  on  the  large  sum 
which  this  Government  had  paid  for  Alaska,  including  the 
rights  now  at  issue ;  profitably  to  the  Alaskan  Company, 
which,  under  governmental  direction  and  restriction,  had 
given  unwearied  pains  to  the  care  and  development  of  the 
fisheries  ;  profitably  to  the  Aleuts,  who  were  receiving 
a  fair  pecuniary  reward  for  their  labors,  and  were 
elevated  from  semi-savagery  to  civilization  and  to  the 
enjoyment  of  schools  and  churches  provided  for  their 
benefitby  the  Government  of  the  United  States  ;  and,  last 
of  all,  profitably  to  a  large  body  of  English  laborers  who 
had  constant  employment  and  received  good  wages."  ^ 
Nearly  all  undressed  fur  seal  skins  were  shipped  to 
London  ;  and  it  is  estimated  that  their  dressings  and 
dyeing  gave  employment  in  that  city  to  10,000  people. 
Has  the  United  States  then  not  acted  in  the  interest  of 
these  other  nations  as  well  as  of  itself? 

If  it  be  true  that  the  United  States,  in  the  enforce- 
ment of  a  claim  of  ownership,  has  committed  an  offence 
against  the  national  rights  of  Great  Britain,  it  is  equally 


I  No.  9,  1890.     Let.  Blaine-Pauncefote,  March  i,  i{ 


98 

true  that  Great  Britain,  by  violating  what  the  United 
States  claims  to  be  the  apparent  laws  of  prudent  seal 
fishing,  has  committed  an  international  offence.  It 
is  no  reply  on  the  part  of  Great  Britain  that  she 
disputes  these  very  laws  and  denies  the  necessity  for 
any  regulation.  For  the  United  States  sincerely  main- 
tains the  reverse.  There  is  presented  a  clear-cut  issue 
of  fact  ;  and  pending  its  decision,  It  is  not  too  much  to 
ask  that  matters  shall  remain  In  statu  quo.  To  allow 
the  indiscriminate  slaughter  of  seals  pending  an  inter- 
national investigation  of  the  facts  and  pending  interna- 
tional negotiations  for  the  protection  of  the  industry, 
might  lead  to  the  destruction  of  the  subject  matter  of 
the  dispute,  and  would  be  folly.  Either  the  seal  fishery 
must  go  unregulated,"or  be  temporarily  regulated  by  a 
power  ready  to  undertake  the  duty.  On  this  theory 
then  the  United  States  might  properly  play  the  role  of 
international  ao-ent. 

The  attitude  which  the  United  States  has  assumed  in 
this  controversy  Is  not  wholly  inconsistent  with  such  a 
theory.  It  has,  It  is  true,  asserted  national  sovereignty 
over  the  w^aters  of  Behring  Sea  by  derivation  from 
Russia.  But  it  has  not  relied  exclusively  upon  such 
assertion.  Mr.  Blaine  unmistakably  points  out  a  further 
reason  for  the  policy  of  his  Government  : 

"In  the  opinion  of  the  President,  the  Canadian  ves- 
sels arrested  and  detained  In  the  Behring  Sea  were  en- 
gaged In  a  pursuit  that  was  in  itself  co7ttra  bonos  mores, 
a  pursuit  which  of  necessity  involves  a  serious  and  per- 
manent injury  to  the  rights  of  the  Government  and 
people  of  the  United  States.  To  establish  this  ground 
It  is  not  necessary  to  argue  the  question  of  the  extent 
and  nature  of  the  sovereignty  of  this  Government  over 


99 

the  waters  of  the  Behring  Sea  :  It  is  not  necessary  to 
explain,  certainly  not  to  define,  the  powers  and  privi- 
leges ceded  by  His  Imperial  Majesty,  the  Emperor  of 
Russia,  in  the  treaty  by  which  the  Alaskan  territory  was 
transfered  to  the  United  States.  The  weighty  consider- 
ations growing  out  of  the  acquisition  of  that  territory, 
with  all  the  rights  on  land  and  sea  inseparably  connected 
therewith,  may  be  safely  left  out  of  view,  while  the 
grounds  are  set  forth  upon  which  this  Government  rests 
its  justification  for  the  action  complained  of  by  Her 
Majesty's  Government."' 

In  reply  to  the  protest  of  the  British  Government 
against  the  seizure  of  the  Canadian  fishing  schooners, 
Mr.  Blaine  wrote  : 

"In  turn,  I  am  instructed  by  the  President  to  protest 
against  the  course  of  the  British  Government  in  author- 
izing, encouraging,  and  protecting  vessels  which  are  not 
only  interfering  with  American  rights,  in  the  Behring 
Sea,  but  which  are  doing  violence  as  well  to  the  rights 
of  the  civilized  world."  ^ 

He  proceeds  not  alone  to  set  forth  the  vastness  of 
the  interests  of  the  United  States  involved  in  the  con- 
troversy, but  alleges  the  larger  welfare  of  mankind  to 
be  the  concern  of  the  United  States.  "In  extermina- 
ting the  species  an  article  useful  to  mankind  is  totally 
destroyed  in  order  that  temporary  and  immoral  gain 
may  be  acquired  by  a  few  persons."  ^  He  compares  the 
Canadian  destruction  of  seals  to  the  use  of  dynamite 
amone  the  fish  colonies  on  the  "Newfoundland  banks;" 
and  asks  : 


1  No.  9,  1890.     Let.  Blaine-Pauncefote,  Jan.  22,  189 

2  No.  17,  1890.     Let.  Blaine-Pauncefote,  May  29,  li 

3  /d. 


100 

"  Does  Her  Majesty's  Government  seriously  main- 
tain that  the  law  of  nations  is  powerless  to  prevent  such 
violation  of  the  common  rights  of  man  ?  Are  the  sup- 
porters of  justice  in  all  nations  to  be  declared  incom- 
petent to  prevent  wrongs  so  odious  and  so  destructive  ? 

"In  the  judgment  of  this  Government  the  law  of  the 
sea  is  not  lawlessness.  Nor  can  the  law  of  the  sea 
and  the  liberty  which  it  confers  and  which  it  protects, 
be  perverted  to  justify  acts  which  are  immoral  in  them- 
selves, which  inevitably  tend  to  results  against  the  in- 
terests and  against  the  welfare  of  mankind.  '''  '•=  =" 
The  forcible  resistance  to  which  this  Government  is 
constrained  in  the  Behring  Seais,  in  the  President's  judg- 
ment, demanded  not  only  by  the  necessity  of  defending 
the  traditional  and  long-established  rights  of  the  United 
States,  but  also  the  rights  of  good  government  and  of 
good  morals  the  world  over."  ' 


I  /,/. 


List  of  Authorities   referred   to, 


Angell,  James  B.  "American  Rights  in  Beln-ing  Sea."  Foium,  New  York. 
Nov.,  1889. 

Annual  Register  of  1852.     Vol.  94.      London,   1853. 

Bluntschi.i,  T.  Kaspar.     Das  Moderne  Volkerrecht.     i   Vol.     Paris,  1870. 

Bynkershoek,  Cornelius  van.  De  Dominio  Maris  Dissertatio.  i  Vol.  I-ondon, 
1744. 

Cai.vo,  Charles.     Le  Droit  International.     2  Vols.     Paris,  1S70. 

Field,  David  Dudley.  Outlines  of  an  International  Code.  2  Vols.  New  York, 
1872. 

Great  Britain.  P'urther  Correspondence  respecting  the  Behring  Sea  Seal  Fish- 
eries. Presented  to  both  Houses  of  Parliament  by  command  of  Her  Majesty, 
March,  1891.     London. 

Grotius,  Hugo.     De  Jure  Belli  ac  Pacis.     2  Vols.     Amsterdam,  1720. 

Mare    Liberum.       Dissertation.      See  Vol.   IV.,  De  Jure  Belli 


ac  Pacis  pp.  443-79     Lausanne,  1752. 
Hautefeuille,  L.  B.     Droits  des  Nations  Neutres.     3  Vols.     Paris,  1868. 
Kent.     Commentaries.     4  Vols.     Boston,  1873. 

Kluber,  Joh.  Ludwig.      Europaisches  Volkerrecht.     i  Vol.     Schaft'hausen,  185 1. 
Martens,  G.  F.  von.     Law  of  Nations,     i   Vol.     Philadelphia,  1795. 

Precis  du  Droit  des  Gens.     2  Vols.     Paris,   1864. 

Nouveau  Recueil.     16     Vols.     Gottingen,  1831. 

Nouveau    Recueil    General,  l)y    Frederic    Murhard.       20  Vols. 


Gottingen,   1844. 

Martens,  Le  Bn.  Charles  de.     Causes  Celehres.     5  Vols.     Leipsic,  1858. 

Ortolan,   Theodore.       Ragles    Internationales    et    Diplomalie    de    la    Mer.       2 
Vols.     Paris,  1864. 

Phillimore,    Sir    Robert.       Commentaries   upon    International    Law.       4    Vols. 
London,  1871. 


102 

I'OMEROY,  John  Norton.  Lectures  on.  International  Law  in  Time  of  Peace. 
Woolsey's  Ed.     i   Vol.     Boston  and  New  York,  1886. 

PUKENDORF,  S.'VMUEL,  FRKIUKRR  V().\.  Law  of  Nature  and  Nations.  I  Vol. 
London,   1729. 

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